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Law360, New York (April 24, 2020, 6:34 PM EDT) -- An attorney for the Federal Defenders of New York on Friday told the Brooklyn federal judge overseeing a dispute over attorneys' contact with their incarcerated clients in New York federal jails that problems are persisting, including two cases of COVID-19 positive inmates who were being held in medical isolation without telephonic access to their attorneys or families.
The concerns were raised during a weekly conference call with U.S. District Judge Margo K. Brodie, who is heading an unusual proceeding to settle litigation brought by the Federal Defenders over the suspension of attorney-client visits last year at Brooklyn's Metropolitan Detention Center.
After the Second Circuit in March revived the suit, Judge Brodie tasked former U.S. Attorney General Loretta Lynch to mediate the dispute between the Federal Defenders and the U.S. Bureau of Prisons.
During conference calls with the court over the course of multiple weeks, Lynch and attorneys for both sides have reported improvements in inmates' access to calls with their attorneys, however Deirdre von Dornum of the Federal Defenders on Friday reported persistent problems with attorney/client access. Two COVID-19 positive inmates, von Dornum said, have been in medical isolation for five days without access to calls from their attorneys or families. Other inmates have only been allowed to place legal calls in the presence of their cell mates, von Dornum said.
There have also been significant issues regarding attorney/client access in the female unit of the Metropolitan Detention Center in Brooklyn, she said.
Inmates have been retaliated against by guards for speaking about jail conditions and social distancing problems with their attorneys on legal calls, von Dornum said, including by forcing inmates to stay in their bunks for four days a week. Moreover, calls by female inmates and some in isolation haven't all been granted the necessary zone of privacy for attorney/client calls, von Dornum said.
"There's been a big increase in the volume of calls, and I appreciate that, but they've come in chaotically and [with] problems with privacy and now problems with retaliation," von Dornum said.
"Yes, that is a big problem," Judge Brodie replied. "Especially the retaliation."
The group that represents indigent defendants in federal court sued the warden at Brooklyn's Metropolitan Detention Center last year over the suspension of attorney visits. The Bureau of Prisons had cut off access after incidents including a fire at the jail that knocked out power and left the prison without heat in the middle of winter. The facility houses around 1,600 inmates.
The case has broadened in mediation to rope in the Metropolitan Correctional Center in Manhattan, another major federal jail in New York City. Judge Brodie has also enlisted U.S. District Judge Alison J. Nathan of the Southern District of New York to assist, as well as Eastern District of New York Magistrate Judge Steven M. Gold.
Assistant U.S. Attorney Seth Eichenholtz told Judge Brodie that the government agrees that legal calls shouldn't be placed in the presence of other inmates and that BOP is working to address that issue.
"The bottom line on this issue is, no we do not believe that providing a legal call in the presence of another inmate is the appropriate way to do that," Eichenholtz said. "And that is not going to be happening going forward."
In terms of the female unit, Eichenholtz said the situation was complicated. He said the lockdown of the women's unit, a dormitory-style facility, was not in retaliation, but came in response to the inmates' noncompliance with orders to wear masks and to socially distance.
"They did institute ... a more restrictive situation for that unit," Eichenholtz said, though he disputed that the female inmates were in a complete lockdown scenario where they were restricted to only their bunks. He said that unnecessary movements were being restricted.
While jail staff has been instructed to allow attorney/client calls that last for 30 minutes a piece, von Dornum said some calls have been time-restricted to 15 or 20 minutes by guards.
"It sounds like these guards will need to be disciplined if they're not compliant with the requirement that these calls must last 30 minutes," Judge Brodie said. "This is a serious issue that must be rectified."
The parties are due to convene for another conference call on Friday.
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 Varuni Nelson, Rachel Balaban, 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 Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.
