MANHATTAN (CN) — A year after an electrical fire cut off power and forced a Brooklyn detention center into lockdown, the Second Circuit appeared inclined Tuesday to let the parties mediate a suit over access to public defenders.
The Federal Defenders of New York is appealing after a federal judge found that the agency lacks standing to sue over attorney visits with inmates at the Metropolitan Detention Center that were interrupted during the lockdown in January and February 2019.
Jenna Dabbs of Kaplan Hecker & Fink said the agency is the proper party because interference with client representation harms its organizational interest.
During the lockdown, the lawyer said, the Federal Defenders had had to devote precious time and resources “just to figure out what’s going on.”
The argument rankled Assistant U.S. Attorney Sean Greene, who argued Tuesday for the government.
“It’s not a drain on their resources to do what they’re paid and required to do,” Greene said of the Federal Defenders.
Dabbs meanwhile noted that the experience of federal defender Deirdre von Dornum contradicted official statements on the power outage.
The same day the Bureau of Prisons told the Federal Defenders that the power outage had not affected heat and hot water at the MDC, von Dornum visited and found the building freezing cold, Dabbs said.
U.S. Circuit Judge John Walker Jr., a George H.W. Bush appointee, did not appear moved by the example.
“There are problems that sometimes occur in buildings … that’s just a fact of life,” Walker said, eliciting snorts and shaking heads in the crowded gallery. Walker went on to quote Aretha Franklin, characterizing Dabbs’ arguments as the BOP showing the Federal Defenders a lack of “R-E-S-P-E-C-T.”
In arguments for the government, Greene said that the Federal Defenders in suing were “essentially trying to assert a right that belongs to their clients.”
The Sixth Amendment right to counsel, he said, “has to bend to the exigencies of the prison system, of security and safety.”
U.S. Circuit Judge Barrington Parker, a George W. Bush appointee, pointed out that it’s in everyone’s best interest to make sure inmates have proper access to lawyers.
“We are committed to getting access,” said Greene, to more snorts and head shakes in the gallery. He explained it would be appropriate for inmates to raise the issue of inadequate counsel in their court appearances.
Parker pressed further.
“So what you want them to do is to go hire lawyer number two to sue to get them access to lawyer number one?” he said. “I don’t get it.”
Carney seemed to agree.
“They can’t afford to spend time cooling their heels,” she said of the Federal Defenders. “Every hour is of the essence.”
While Greene said he did not have the authority to immediately agree to mediation Tuesday, the Federal Defenders were eager to talk. Dobbs said mediation is “exactly the direction” the conversation should go.
“Candidly, [we] would vastly prefer to be doing that than to be litigating against the Bureau of Prisons,” she said.
The Federal Defenders say they represent nearly half of all people incarcerated at Brooklyn’s Metropolitan Detention Center, which houses pretrial detainees.
Though the panel did not rule from the bench, it seems likely the case will bounce back to U.S. District Court to appoint a mediator.
“No one is expecting perfection,” said Dabbs during her initial arguments. “We are realistic people.”