Tit for tat

I have an idea and then a proposal.  Here’s the context.

I took an assignment of a difficult death penalty case in Arkansas.  Last week, I authorized the withdrawal of an Assistant Federal Public Defender in that difficult matter involving, as it does, the death of a child at the hands of a man who suffered a serious injury to the frontal lobe of his brain.

I wrote:

Deborah Anne Czuba has filed a motion to withdraw as counsel. She is a
victim of the sequester. I now extend my personal thanks to Ms. Czuba for her
excellent and zealous service in this most difficult of cases. She has every reason to
be proud of herself. Congress has every reason to be ashamed of itself.

I got to thinking this weekend about how one could illustrate and then begin to rectify (or at least balance) the utter depravity that drove Ms. Czuba’s firing as a result of the sequester.   You first need to know a bit about Ms. Czuba.

She is not a rookie. She had been a public defender for 18 years.  Until she was canned, this was her bio from the Cornell University Law School:

DEBORAH ANNE CZUBA is an Assistant Federal Public Defender in the Capital Habeas Unit of the Arkansas Federal Public Defender’s Office. Prior to this, Deborah worked with the New York Capital Defender Office, and later served as Deputy Director for Investigation and Mitigation and Senior Staff Attorney with the Georgia Capital Defender Office. Deborah graduated from Wellesley College in 1992 and from Cornell Law School in 1995. During law school, Deborah worked as an intern with the South Carolina Death Penalty Resource Center, and as a research and teaching assistant for death penalty courses at Cornell Law School. Deborah has spoken at numerous national conferences on the death penalty (including NLADA’s Life in the Balance and for the NAACP Legal Defense Fund), specifically on the topics of mental retardation and the death penalty, and mitigation investigation.

With the foregoing keenly in mind, here’s my proposal.

Unless the House Judiciary Committee is run entirely by hypocrites, I think the Committee ought to fire one of its lawyers every time a federal public defender gets the axe as a result of the sequester.  Perhaps Mr. Branden Ritchie, Deputy Chief of Staff and Chief Counsel for the House Judiciary Committee, would be a good candidate for the first sequester generated pink slip.

I don’t know anything about Mr. Ritchie. I assume that he is a very competent lawyer and a really good person. But, hey, shit happens.

RGK

21 responses

  1. Excellent proposal. The apparent key to combating the ravages of the sequester is to make sure its effects are felt by those who believe they do not enjoy any benefits of government spending. For example, when airline passengers (including Congresscritters) realized that the sequester was likely to affect the speed and safety of air travel, a workaround was quickly reached.

    Of course, the Federal Public Defender’s office is not likely to receive a Congressional client any time soon, so we must find ways to link the FPD’s pain to the well-heeled in office, as well as their constituents. I confess that I can’t readily think of ways to do this (perhaps link Congressional staffing to the pay and workload of the FPD?), but the judge’s proposal is a step in the right direction.

  2. I happen to agree with the sequester, it being made necessary by a Presidential intransigence on spending and taxing generally, aided and abetted by his allies, the Senate Majority Leader and the House Minority Leader.

    …affect the speed and safety of air travel, a workaround was quickly reached.

    You bet. Not by restoring funding, though, but by reallocating money the FAA and related agencies already had.

    Concerning your proposal, though, I don’t think you go far enough. I’d like to see Congress cut the staff of each Congressman, the President and Vice President, and each political appointee in all of the Cabinet and Independent Agencies to a maximum of three–including volunteers. I’d like to see similarly deep cuts to Congressional committee staffs and to the Department and Agency staffs. It’s time these guys started doing their own work instead of outsourcing it.

    Of course, that would slow down the workings of the Federal government. What’s the downside of that?

    Eric Hines

    • Dear Eric,

      The sequester is is a crazy idea that everyone thought was too crazy to ever happen–the problem of course is that the premise of that reasoning presupposed that those in Congress weren’t crazy. The joke’s on us.

      The federal judiciary is not an Executive Branch agency. It is a coequal branch of government. It deserves to be treated with far more respect than, say, the FAA, DOJ, HUD or the Defense Department. Not only that, but the maddening fact is that federal judiciary’s total budget doesn’t amount to a rounding error.

      The folks in Congress, to the extent they think about the federal judiciary at all, are intentionally destroying a judicial system that is the envy of the world. No rational person, free of mind altering ideological cant, would do to the federal judiciary what Congress is doing to it.

      There is simply no excuse or rationalization for the ongoing destruction of the federal judiciary. None whatsoever. In your heart, I suspect that you know that is true.

      All the best.

      RGK

      • Judge Kopf,

        Oh, I agree that the sequester’s premise is idiotic, and the broadaxe approach to reducing spending…suboptimal. Keep in mind, though, that the foolish aspects of the across-the-board, and miniscule, cut was necessitated by a President who cynically offered up budgets that couldn’t get a single vote for three years and a Senate that refused, for those same three years, to engage at all in the budgeting process, beyond unanimously voting down the President’s budgets.

        The judiciary also is coeval with the other two branches of the Federal government. That makes the President’s and Senate’s intransigence the more shameful.

        That’s all coupled with President Obama’s present (and repeated from 2011) announcement that he’d rather halt the government altogether and damage further our national credit rating than agree to spending and tax cuts–especially those proposed by Evil Republicans.

        The Congress is doing this? Try the Senate. The House, whether you agree with their principles or not, have for the last three years, done their duty and passed budgets, tried to engage the Senate in serious negotiations, etc, etc, etc. What’s been the Senate’s response?

        What’s been the President’s response? Aside from refusing to negotiate, he’s wasting precious time bleating about “phony scandals.” Which is a scandal itself.

        As to not allowing funds reallocation within the Judiciary’s budget, I agree that’s idiotic, too, but that’s not a failure of sequestration, but of the implementation of it.

        Eric Hines

  3. E Hines – The same option was available to the judiciary. There are funds available to fund the Federal Defenders in the judiciary’s budget, however, congress refused to allow the judiciary to reallocate funding to prevent the sequester from impacting the Federal Defender program. Likely because the impact to the Federal Defenders does not impact them.

  4. There is an irony here. And this is true irony, not irony in the Alanis Morrisette sense http://www.youtube.com/watch?v=Jne9t8sHpUc

    “Tit for tat” was the winning strategy in a famous computer derby of millions of plays of the Prisoners Dilemma. Essentially the political branches set up a game of the Prisoners Dilemma, but they made the cost of “defecting” so high that they thought they’d force themselves into cooperating. They either under or over estimated themselves, depending on whether the estimate was as to reasonableness or obstinacy.

    The Framers had the right idea in Article III by insulating judicial salaries, but even in all of their genius couldn’t have foreseen that the judicial system would have all of the moving parts that it does. Best, Pat.

        • Pat,

          Only a person with experience as a law school dean would be able to cite, and embed a video link, to a movie produced, as a result of a bet, by an insurance and fertilizer salesman from El Paso, Texas. Bravo!

          I am not worthy. All the best.

          RGK

    • Pat,

      Your game theory reference is fascinating. It has many ramifications. For example, if a fish seems to be able to engage in tit for tat behavior, is the fish sentient, at least at some level? See, e.g., Guppies and the TIT FOR TAT strategy: preference based on past interaction. My kid, the fish ecologist and biologist in Australia, sometimes thinks about such things. Anyway, you would hope that members of Congress might achieve the same level of cognition as guppies. On second thought, maybe they have.

      All the best.

      RGK

      • Rich, the guppy analogy is problematic, because when they pass I actually feel bad about having to flush them down the toilet. Of course, if I came to a federal courthouse to do this so my youngest son wouldn’t see, I might wind up charged with a federal crime. There’s a lot to think about here. Best, Pat.

        • Pat,

          Yes, in the bathroom I am forced to use with jurors and others of that ilk we have sign. It reads: NO GUPPY FLUSHING! So far as I know, however, there has never been a guppy flushing prosecution in the District of Nebraska. All the best.

          RGK

  5. Your blog was sent out to the CJA panel for the MDFL. All of us CJA guys and gals agreed with maybe a couple objections to take a 3 month freeze on invoices to help save FPD jobs here. The sequester has been such a disgrace. Why Congress couldn’t find ways to target cuts is beyond me. The FPD guys are amazing resources for private practicioners, and share their briefs and memos, and they’re just a phone call away for us panel folk. I can make do for 3 months on my other work to get by if it means saving defender jobs in this economy. Anyways great blog, Judge. I’ll put it on my morning coffee reads.

    • Chris,

      Rather than thinking of themselves, CJA panel counsel have been simply wonderful despite the fact that Congress is forcing the judiciary to pay their bills in a manner similar to how the bankruptcy judge in Detroit will treat that city’s creditors. Welcome to the Motor City.

      All the best.

      RGK

  6. As an alternative to your excellent proposal, have your considered appointing a member of Congress from the District — or perhaps a member of his/her staff — as counsel for the defendant, to replace the Federal Defender who lost her job? Your inherent authority to do so was noted as an open question in Mallard v US District Court, 490 US 296 (1989).

    • Peter,

      Can you imagine the initial conversation between client and the Member appearing as defense counsel? It might go something like this:

      Congressman X: Hello, Mr. Defendant. I’m a patriot and I am glad to meet you. Wanna see my American flag lapel pin?

      Defendant: WTF!

      Congressman X: Don’t worry, I’m on your side. In fact, I’m on everybody’s side. Wanna see my American flag lapel pin?

      Defendant: Listen, you little putz . . . Damn it, stop fondling me.

      Congressman X: That’s not fondling, just a little friendly laying on hands!

      Congressman X: Say, speaking of hands, let’s put our hands over our sacred parts and pledge allegiance. According to the Ninth Circuit, I think it goes something like this: “I pledge allegiance to the flag-burning of the United States of America, and to the republic which the courts command, one nation, above God, indivisible (except for all that race, class and gender warfare bullshit), with equality and five-star beach resorts for all terrorists.” [Hat tip: Julia Gorin.]

      Defendant: I don’t remember it that way, but . . . .

      Congressman X: That’s precisely why you should admit your guilt and praise the Lord.

      Defendant: But I’m not guilty!

      Congressman X: Tell me this then. If you aren’t guilty of something, how come you have a Member of Congress as your lawyer?

      Defendant: Give me the damn plea agreement.

      Congressman X: Not so fast buster. I want my retainer up front and I want it now. Screw the sequester, the Criminal Justice Act and the Federal Election Commission. Well, on second thought, let’s keep the small matter of my retainer on the down low. No need to mention it on my voucher.

      RGK

        • pdgpa,

          Of course, I would issue a voucher. Indeed, I am told by lobbyists of my acquaintance that we could never get a MoC into the courthouse without dangling a voucher to sweeten the pot. As for the “learned counsel” thing for capital cases and such, who in the hell takes that seriously?

          All the best.

          RGK

  7. Moral hazard meets quis custodiet ipsos custodes. It happens every time.

    pdgpa’s suggestion is intriguing.

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