By Frank G. Runyeon

Law360, New York (March 17, 2020, 2:46 PM EDT) -- The head of the Federal Defenders of New York on Tuesday said Manhattan federal prosecutors will endanger public health if they press forward with a group arraignment set for Wednesday, citing coronavirus infections in the U.S. attorney's office.

David Patton, executive director of the pro bono group, told Law360 that the court's decision to call nearly a dozen defense attorneys in to defend as many individuals flies in the face of warnings from public health officials and creates an unnecessary risk to everyone gathered, especially considering two confirmed diagnoses in the federal prosecutor's office in the Southern District of New York.

New York state has banned gatherings larger than 50 people and President Donald Trump on Monday recommended that no more than 10 people congregate.

In an email obtained by Law360, an SDNY clerk emailed attorneys on Monday via a Criminal Justice Act listserv, seeking volunteers to represent clients: "Eleven CJA attorneys are needed in Mag Court on Wednesday March 18, 2020. The first 11 attorneys to respond, via email, that he or she is available will be provided further information."

"They are creating a health risk," Patton said. "All of us are endangering one another by further risking spreading the virus. Absent some really compelling need, we shouldn't be congregating."

Patton expressed concerns on Sunday in a letter to Second Circuit judges, Manhattan federal prosecutors and courts, as well as the U.S. Attorney's Office for the Eastern District of New York and the Brooklyn federal court, saying the Federal Defenders were operating at reduced capacity due to the outbreak and asking prosecutors "not to engage in business as usual with respect to new cases."

Two staffers in the Federal Defenders' office had coronavirus symptoms and were being tested, Patton said, before adding that he was aware of confirmed infections in the SDNY prosecutor's office.

"I have learned from the United States Attorney's Office in the Southern District of New York that an agent with the Joint Terrorism Task Force and a security officer at the front desk of St. Andrews have tested positive," Patton said in the letter. "Apparently, one other agent and an AUSA likely have contracted the virus but have not yet received test results."

A spokesman for the U.S. attorney's office confirmed the two positive diagnoses in the office but declined to comment on Patton's claims that an assistant U.S. attorney and agent were likely infected.

"The office is continuing to work with the chief judge on measures to minimize risk of exposure to anyone who comes before the court," James Margolin, spokesman for the U.S. attorney's office, said Tuesday.

Bobbi C. Sternheim, the CJA panel representative for SDNY and a Federal Defenders board member, also expressed concern over the planned arraignment. She noted that newly arrested defendants come in contact with many people as they go through the arraignment process, including the defense attorneys that represent them, before those defendants end up in the Federal Bureau of Prisons.

"Obviously I have concerns about the health and well-being of everyone involved," Sternheim said. "What's of greater concern to me is putting people into a BOP petri dish."

SDNY District Court Executive Edward A. Friedland told Law360 on Tuesday that "if there are any arrests, the court will continue to carry out our constitutional responsibility and do so following guidance from public health officials."

As of 11 a.m. Tuesday morning, New York state tallied 1,374 positive coronavirus cases and New York City had 644 alone.

--Additional reporting by Emma Whitford. Editing by Janice Carter Brown.

Update: This article has been updated with additional comment from the SDNY district executive.

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