Tuesday, July 20, 2010
Should U.S. Attorneys Have Offices in Courthouses?
In many places around the country, the United States Attorney's office is in the same building as the federal courts. I've never liked this arrangement. Sure, it's convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about "avoiding even the appearance of impropriety," it is unseemly, I think, to have the government's advocates down the hall from the judges.
In a court case, "the government" always refers to one party on one side of the v. "The government" is not inclusive of the court, the judge, and the clerks. So why put them under the same roof?
Of course, I personally am not worried about our third branch being able to maintain its integrity despite being roommates with the U.S. Attorney's office. But I'm a law professor. I know a few federal judges, a few federal prosecutors, and a slew of ex-clerks. Whether I am worried is irrelevant. The question is, do these office arrangements cause any regular people on the street to have some inkling of doubt about the independence of the judiciary? I think the answer is, of course they must.
We seem to agree that appearances matter when it comes to the courts. Judges wear robes. Courtrooms look grand and dignified. There is copious use of granite and marble. And on and on. It just seems like the right thing to do is to have all attorneys and litigants walk through the same doors.
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Often the Federal Public Defender is in the same federal building cum courthouse. Does that mitigate your concern?
Posted by: David Levine | Jul 20, 2010 8:05:10 PM
Eric makes an excellent point and one that deserves to be explored further. I'm sure there's data on this.
If not, there should be. Perhaps a survey of both court house employees and litigants would provide some more data about how the public feels. It would also be interesting to know more about court house floor plans in other countries. The situations he describes certainly does nothing to dispute a defendant's impression that the whole "government" is out to get him.
The question of impartiality comes up frequently in my field of bioethics and public health law in proposals (increasingly successful) to ban drug reps from physicians’ offices. For years, most physicians vehemently reject the idea that their prescribing habits could be changed by the visit of a very pretty girl (don't shoot the messenger, this happens) or a hot lunch on a busy day. However, many changed their minds based on studies being done in which researchers were able to track the path of a drug rep through a medical office building simply by analyzing the prescribing patterns of the doctors who worked there.
Perceptions are so changed that many medical students and residents have formed "no free lunch" societies that reject the traditional drug company catering in the form of lunch time seminars.
The obvious reason for having prosecutors in the court house is proximity. They are indeed in and out of the court room every day and more to the point can make good use of the frequent breaks and delays by going back to their offices work but just because something is convenient and traditional doesn't mean it's right.
Here begins what may have turned out to be the kind of golden glow/gauze wrapped story told by those of us whose clerkship is now twenty or more years in the past. It's on point though--
The Judge for whom I clerked, the Chief Judge of the District of Massachusetts, the Honorable Frank H. Freedman would have completely agreed with Eric's concerns and went out of his way to address these issues in his court house.
Although Massachusetts was only one District, it did have divisions and he sat in his home town, Springfield, MA (about an hour and a half away from the rest of the judges in Boston). We worked in a big modern, fortress like building downtown that was essentially the federal government in miniature. Not only were the AUSA's and the public defenders there, but so was the DEA, INS, FBI, etc. agents, the social security office, the IRS, the Army, the Navy, etc.
Judge Freedman had rules to preserve not just the impartiality of the court but also the appearance of impartiality.
Unlike the experience of my friends who were clerks in other District Courts and my later personal experience in the SDNY when practicing, he did not allow his clerks to have contact with any attorney appearing before the court or any of the other federal employees in the building besides those directly employed by the Court. He would not have permitted one of his clerks to room with an AUSA.
In the case of private attorneys, he did this for our protection. As he explained, if we had no contact with the lawyers, then no lawyer could ever say one of us had promised something. I recall him saying that he had a court room deputy, a secretary, and the entire clerk's office and that was sufficient to handle scheduling need or other issues a lawyer would want to discuss with a law clerk.
In the case of the Government attorneys and agents, he felt equally strongly and thought in general that if we became friendly with them it would be apparent in court and create at best an appearance of pro-government bias.
I think he was absolutely right and that his very formal approach created a court room where everyone really was equal before the law.
Of course it was a little uncomfortable. We clerks were about the same age as several of the AUSA's living in a somewhat isolated city and passed each-other in the halls almost every day. We averted our eyes. I would have loved to talk to them about their work because at that time I was very interested in being an AUSA myself. I never did that. On the other hand, there were never any requests for even the smallest favors or information either in the court room or outside.
Judge Freedman was a wise man in many ways. He felt his role as an impartial provider of justice very strongly and would certainly agree with Eric and would have supported a proposal for greater separation between the court quarters and that of the US Attorney.
One of the few times I ever saw him angry was when a newspaper article referred to him as "a Republican" because he had indeed been a politician. He told us that he "was a Republican before being appointed to the bench (by President Nixon). Now, he was a judge."
He felt that litigants in his court room should not have to be concerned that he would treat members of different political parties differently.
I'm sure it is possible to be less strict than he was and I am not suggesting that any harm to justice is done if the judge's clerks and the AUSA's are on a first name basis. I also appreciate the reality all kinds of over-lapping relationships in every court house from the United States Supreme Court on down. (I write this from the heart of West Texas--believe me everyone knows each-other). But I do think the separation is something to consider--especially when building new facilities.
Sometimes we take things for granted--like having all the government employees in one building because we know that under the same circumstances we would still be impartial--and don't think how it looks to people who may have only one encounter with the legal system in their entire lives
Posted by: Jennifer Bard | Jul 20, 2010 10:34:25 PM