By Frank G. Runyeon

Law360, New York (April 10, 2020, 4:54 PM EDT ) A Brooklyn federal judge on Friday said that the Federal Bureau of Prisons was failing in its duty to provide access to counsel for inmates in New York City detention centers, criticizing them for barring sick inmates from speaking to their attorneys during the COVID-19 pandemic.

U.S. District Judge Margo K. Brodie expressed disappointment with the Metropolitan Detention Center in Brooklyn and the Metropolitan Correctional Center in Manhattan for the insufficient number of phone calls permitted for federal inmates, rebuking the officials for restricting detainees' access to legal counsel and demanding that the BOP allow isolated inmates to make calls.

"Is the BOP falling down on the job? Absolutely," Judge Brodie said during a conference call, responding to criticism from counsel for the Federal Defenders, who accuse the BOP of violating the inmates' Sixth Amendment right to legal counsel.

After the judge inquired about access to quarantined inmates, who are segregated due to potential exposure to the novel coronavirus, Deirdre von Dornum of the Federal Defenders reported that some calls were coming through but that she had heard nothing from inmates who had fallen ill in the prisons.

"That is an issue that BOP needs to resolve," Judge Brodie said. "Lawyers should have access, even if their inmates are isolated."

"I appreciate the circumstances, and I know how challenging it is, but even if it does mean that you have to take a cellphone to an area where this isolated inmate is, BOP must figure out a way to make this happen," Judge Brodie added.

Von Dornum explained that attorneys knew practically nothing about an inmate's condition once they were isolated for showing symptoms of COVID-19 or testing positive for the coronavirus.

"We learn that they're infected or symptomatic, we ask if we can speak to them so that we can know how they are, speak to their families, make bail applications as necessary, and we are told that that is not possible," von Dornum said.

"We've had no access to isolated people," von Dornum added. "Not even a phone brought to their cells."

Government counsel for the Brooklyn prison quickly agreed.

"We absolutely will," Seth D. Eichenholtz said, adding that BOP would "make sure there is a method by which this can happen."

Government counsel for the Manhattan prison, which is not technically a party to the lawsuit before Judge Brodie, pushed back.

"MCC views the protocol a little differently than the Federal Defenders," said Jeffrey Oestericher of the U.S. Attorney's Office for the Southern District of New York. "We agree to a procedure where we would confer with the Federal Defenders about the timing and need for the call."

"Inmates in isolation often have a certain time period that they'll be in isolation and then they'll be released," Oestericher added. "And each inmate is in a different situation where they might be actively very sick, near the end, awaiting test results, et cetera."

Judge Brodie counseled that the prisons and defenders should meet with the mediator to hammer out conditions under which inmates can make calls, but cautioned against any excuse that an inmate was too sick to take a call from his attorney.

"Clearly, if the inmate is that sick, they should be in a hospital," Judge Brodie said.

Von Dornum also reported that court prison officers call attorneys via the so-called "federal defender" phones in the hallways for inmate calls, instead of office phones, forcing the inmates to speak to their attorneys in a public setting where others can listen in.

"We don't want to bring these people into our offices," von Dornum recounted an officer telling her.

"And that clearly should not be happening," Judge Brodie said, directing the prisons that inmates should be allowed to make their calls in private.

A week earlier, the judge had demanded an explanation for why the prisons could not 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 judge has so far held off on a formal order, preferring to work through mediator, former U.S. Attorney General Loretta Lynch, who is now a partner at Paul Weiss Rifkind Wharton & Garrison LLP. Lynch was appointed after the Second Circuit overruled Judge Brodie and revived litigation brought by the Federal Defenders in 2019 over the suspension of attorney-client visits last year after the Brooklyn facility lost power and heat in January.

Government counsel for the Brooklyn prison noted that part of the problem with increasing the number of phone calls was that staffing was down 10% since COVID-19 hit the city and janitorial staffing is down 20%.

Counsel for the defenders argued that the current situation was "untenable."

"We think that is not acceptable if the BOP cannot safeguard the constitutional rights of its detainees, then something else has to shift to account for that," Federal Defenders counsel Jenna M. Dabbs of Kaplan Hecker & Fink LLP said.

"At some point the BOP needs to say this is how many people we can detain constitutionally," David Patton of the Federal Defenders said. "If their staffing issues or their technical issues are such that they cannot at the MDC accommodate 1,700 people under current conditions, then they need to be honest about that and they need to stop speaking out of both sides of their mouth."

On Friday, the court declined to grant the Federal Defenders' request for an order demanding attorneys be able to speak to their clients within 48 hours of their request, reasoning that it was better for Lynch to continue to gather data that would reveal why the prisons were failing to provide timely access to counsel.

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 Nicole Bleier.

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