The Bomber, the Boston Federal Public Defender and the Anti-Deficiency Act

Zoe Tillman, writing for the National Law Journal, noted today that “[a]s the federal public defender office in Boston prepares to defend Dzhokhar Tsarnaev, the 19-year-old charged in the Boston Marathon bombings, the lawyers involved face an added challenge: managing the case in the midst of furloughs.” Public Defenders for Boston Suspect Facing Furloughs (free registration required).

To make matters even more complicated, there may be a serious question whether those defenders would violate federal law if they appeared in court during a furlough day.  According to the GAO,

The Antideficiency Act prohibits federal employees from

*making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

*involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

*accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

*making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

U.S. Government Accountability Office, Antideficiency Act Background

Imagine this:  “Sorry, judge, I can’t show up today to defend a guy charged with blowing up Boston because if I do I may violate the law.”  Nice.

Rather than trying to solve this puzzle, doesn’t it make far more sense for Congress to authorize an emergency appropriation for the judiciary and, most particularly, Federal Public Defenders and CJA counsel?


The frequent irrelevancy of the Supreme Court

Yesterday I wrote about the great oral advocate Paul Clement getting knocked around in an appearance before the Supreme Court.  That got me thinking about the “center of the universe”  and the “field.”   I once heard a really smart judge refer to the Supreme Court as the “center of the universe”  and the rest of the judiciary as the “field.”   This judge did so without the slightest bit of irony–she really meant it.  It struck me then, as it strikes me now, that such views are often wrong as an empirical matter.

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

Irrelevant decisions occur in the Supreme Court’s criminal docket as well.  For example, no one who knows anything about search and seizure law thinks this term’s “dog sniff” case will have any meaning in the “field” save for a vanishingly small number of cases.*  The only real impact of that case is that Aldo the German shepherd got a lot of love.

In short, while the Supreme Court may exist at the “center of the universe,” it frequently plies its trade in a “galaxy far, far away.”


*Now, it is true, that the Supreme Court can really screw things up.  Look at what the Supreme Court did in Booker and those line of cases.  If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that.  Perhaps that is because when you are at the “center of the universe” its hard to look out.


Federal district judges frequently get no respect at the Supreme Court.  Or at least that was true prior to the arrival of Justice Sotomayor who served for many years as a federal district judge before her elevation to the Supreme Court.

With great pleasure, I read the oral argument transcript in Sekhar v. United States, 12-357, where the distinguished advocate Paul Clement gets smacked around for being a smart ass when referring to a federal district judge who sat by designation on the Second Circuit.  I enjoyed the refined ass whipping Clement received as well as his fawning response.  Perhaps you will too.

MR. CLEMENT:  Well, a couple of things, Justice Sotomayor.  I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things.

One, I noticed it was written by a district [judge] sitting by designation.  So, I mean, I – I don’t mean anything by that other than this is not Marbury.

Second, I would say that the second thing I noticed is that the debt –

JUSTICE SOTOMAYOR:  Oh, I think when I sat as a district court judge, I would have been insulted by that.

MR. CLEMENT:  Well, it’s not – it’s a good thing you’re no longer sitting in that capacity, Your Honor –

JUSTICE SOTOMAYOR:  Okay.  It’s really –

MR. CLEMENT:  — because I – I certainly mean you no offense.  You could write Marbury here.

Arguments Transcript, Supreme Court of the United States, 2012 Term Cases, #12-357, Sekhar v. United States, argued April 23, 2013, p. 60-61.

Congress is herewith warned

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days.  Here is the missive received today from our Clerk’s office:



The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates1:
May 3 May 17 May 24 June 14 June 28 July 5 July 19 August 2 August 16 August 30
The Nebraska Federal Public Defender’s Office staff will be furloughed on these dates, and the Defender’s Omaha and Lincoln offices will be closed. In the event the U.S. Attorney’s Office is required to furlough its staff, the same date(s) will be used.

1.  The only exception to this directive is when the assigned judge specifically requires the hearing or trial to be held.

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD.   If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations.  I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished.  If a banana republic is what members of Congress want, I may help them get it.


It’s a fact: Federal district judges are carpenters not politicians

Photo credit:  Phil and Pam's photostream per Creative Commons License.

Photo credit: Phil and Pam’s photostream per Creative Commons License.

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges.   In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences.  While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

As the full title of their book specifies, the authors assert that federal district judges are rational actors.  Employing an economic model, the authors’ premise is that federal district judges avoid effort that is wasteful or unproductive (effort aversion) and federal district judges avoid effort that results in reversal (reversal aversion).  Since most cases in the federal district courts are “easy”–meaning that they can be resolved by application of rules and precedents–federal district judges resort to conventional legal reasoning even when that reasoning produces results inconsistent with the judge’s personal ideological preferences.   Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful.  That is, the federal district judge  will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort.  The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.*

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views.  This group of judges act more like carpenters than politicians.   This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.


*One can accept the data discussed by the authors and the statistical analysis conducted by them without accepting or fully accepting their labor model as an explanation.

30 days in jail for taking a cell phone photo of sentencing in federal court? Damn right!

Over at SL&P there is a discussion about the propriety of a federal judge sentencing a kid to 30 days in jail for using his cell phone in the courtroom.  The cell phone user took a photo of his friend during a sentencing hearing.  The cell phone photographer had a criminal record.  Some commentators wonder about the First Amendment and that sort of thing.

Why would a federal district judge throw someone in jail for using his or her cellphone to take a photo during sentencing?  Here’s a clue:  As I write this post,  there is a concerted and nationwide effort by “shot callers” in the federal prisons to identify defendants who cooperate with the government.  Being identified as a snitch in federal prison puts your life at risk.  This is a much bigger problem than those on the outside might imagine.

Welcome to the reality of federal sentencing.


District judges as surfer dudes (and rational actors?)

I return to The Behavior of Federal Judges which I have lauded and discussed in earlier posts. The authors (Epstein, Landes and Posner) use a labor-market model that assumes judicial actors make rational choices.

The authors consider judges–and specifically district judges–just like other economic actors. That is, federal district judges are self-interested.  They are motivated by pecuniary aspects of their work as well as non-pecuniary aspects of their work.

One can apply a rational choice model to all sorts of vocations and avocations.  Remember, rational actors in the labor market are motivated by non-pecuniary aspects of their work, like opportunities for leisure, and not merely pecuniary incentives.

So, just for fun, let’s try to apply rational choice theory to federal district judges who surf but only on weekends.

You first need to know what the judicial-surfer actually does before you can apply rational choice analysis.  Once you know that, you can begin to question whether a rational judicial-surfer would engage in the activity.

Consider the following:

Photo credit:  By Space & Light Photostream (Thierry Gregorius) per Creative Commons License.

Knowing the foregoing, would our rational judicial-surfer surf?   In this post, it is best to leave that question unanswered.

Later, I will write about psychic satisfaction and how that fits (or does not fit) into a rational choice model of the behavior of federal district judges.  For now, surf’s up!


Photo credit: By Space & Light Photostream (Thierry Gregorius) per Creative Commons License.

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