By Frank G. Runyeon

Law360, New York (April 3, 2020, 3:54 PM EDT) -- A Brooklyn federal judge on Friday chastised the Federal Bureau of Prisons for failing to provide New York City inmates adequate access to their attorneys during the coronavirus pandemic, giving the agency until Monday to explain why it wasn't allowing more phone calls.

U.S. District Judge Margo K. Brodie demanded an explanation for why the Metropolitan Detention Center in Brooklyn cannot handle more than 15 to 20 phone calls a day for its 1,700 inmates, warning that she would issue a court order forcing the MDC to allow requested attorney-inmate calls and a minimum number of videoconferences if the agency can't "do better."

The prison has been locked down due to the pandemic since March 13 with no visitors of any kind allowed.

"The inmates must be able to make their calls," Judge Brodie said, later adding that she was "really troubled by the fact that the facilities are just not accommodating phone calls."

"I'm not saying that they're not doing everything that they can, but it's not enough," the judge said of the BOP, calling the number of calls insufficient. "This is the only access at this point in time."

"The BOP has to do better than that. Phone calls we're talking about here. Phone calls," Judge Brodie said during the teleconference hearing, sounding exasperated. "Even if it means that you have to dedicate one person for each unit to continuously take the inmate to a location where they can make these phone calls. That should not be such a challenging thing for the BOP to do."

"But if on Monday, once you've notified me, and the problem as you seem to be telling the court is simply manpower, then I am going to sign an order forcing the BOP to do better," Judge Brodie warned.

The judge also said a fact-finding deal brokered by the court-appointed mediator, former U.S. Attorney General Loretta Lynch, "must go forward. Because I do need that information. We need to see what the problem is."

Lynch, now a partner at Paul Weiss Rifkind Wharton & Garrison LLP, told the court on the call that her proposed deal involves getting an accurate tally from both public defenders and the BOP of how many phone calls are requested, which calls are actually made, and why other calls didn't happen.

"I do think that gathering the data on this, particularly the reasons why certain calls are not able to be made, is going to be a very, very useful venture," Lynch said.

The Metropolitan Correctional Center in Manhattan has agreed to abide by the judge's rulings as well, thus far, to avoid a separate action in the Southern District of New York.

Counsel for the Federal Defenders of New York, who accuse the BOP of violating the inmates' Sixth Amendment right to legal counsel, argued in a letter Thursday that the MDC and MCC's constitutional violations "have grown worse. Much worse."

"In fact, in the final eight days of March alone, the Federal Defenders requested calls with approximately 59 clients; they have been able to speak with only 18 of them," wrote Sean Hecker of Kaplan Hecker & Fink LLP on behalf of the public defenders. Video calls have been even less successful — BOP only allowed three of 10 promised calls last week, Hecker said.

One immunocompromised attorney had to cancel one of those calls due to concerns over venturing out into public during the pandemic, because attorneys must make video calls to the MDC federal inmates from designated stations at federal courthouses.

"Only two inmates at the MDC got a look at their lawyer. So, videoconferencing has not worked," Hecker said during the Friday teleconference hearing.

Moreover, many times the requested calls never happen, and when they do it's taking three or four days to schedule them, and even then, the call isn't happening at the prearranged time, Hecker said on the Friday call. This impedes clients' ability to prepare for trial and attorneys' ability to win emergency applications for release due to the danger to vulnerable inmates posed by the outbreak, he said.

New York City's federal prisons have seen a flurry of petitions to release inmates who have medical conditions that make them particularly vulnerable to the coronavirus, describing the detention centers as woefully unprepared to shield people in custody from the outbreak — social distancing is impossible in the facilities and inmates say even soap is unavailable.

Judge Brodie was sympathetic to the argument that the prison's failure to provide adequate access to legal counsel via phone calls was hamstringing attorneys.

"There is no question that a number of lawyers have been making applications to the court to try to get their client released without being able to speak to their clients. And because of that, a number of applications are being denied, because the court doesn't have enough information to rely on. So, this has to change," the judge ruled.

The Federal Defenders are represented by Jenna M. Dabbs, Sean Hecker, Joshua Matz, Matthew J. Craig and Benjamin D. White of Kaplan Hecker & Fink LLP.

The government is represented by Seth D. Eichenholtz and Sean P. Greene of the U.S. Attorney's Office for the Eastern District of New York.

The case is Federal Defenders of New York Inc. v. Federal Bureau of Prisons et al., case number 1:19-cv-00660, in the U.S. District Court for the Eastern District of New York.

--Editing by Marygrace Murphy.

For a reprint of this article, please contact reprints@law360.com.