Quarantined Inmates at MDC Should Be Permitted to Speak to Lawyers – but How? Judge Comes up With Obvious Answer
April 13, 2020
U.S. District Judge Margo K. Brodie ruled on Friday that the Federal Bureau of Prisons was failing to provide proper phone access to counsel for inmates in New York City detention centers, criticizing them for barring sick inmates from speaking to attorneys during the COVID-19 pandemic.
She pointed out that the Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn [the latter houses Keith Alan Raniere] are not making proper arrangements for phone calls from sick inmates to lawyers.
During the pandemic, when most prisoners are on lock-down, and there are quarantine areas for the sick and potentially sick, MDC officials claimed that they were only able to accommodate a maximum of 20 phone calls a day for its 1,700 inmates.
Normally, inmates speak to attorneys on so-called “federal defender” phones in hallways, or in office phones arranged for that purpose. The hallway phones are not private and anyone can listen. It is not known if these phones are tapped.
Offices phones are now out of the question since BOP officers do not want to bring infectious inmates into offices to make calls.
Judge Brodie, however, is demanding that the BOP figure out a way for isolated inmates to make calls to lawyers. [All in-person visits have been suspended.]
At the MDC, most inmates are innocent [until proven guilty] since they are defendants awaiting trial. Some, like Raniere, are awaiting sentencing.
Raniere is in lock-down and Frank Report is trying to confirm if he is in quarantine because of an actual infection of COVID-19.
Raniere was also unable to contact his attorneys by phone, prompting his lead attorney, Marc Agnifilo, to petition the court to make a phone call available to him, which was granted. It is not known if the call has been made.
Raniere, who faces sentencing in May, needs to review – and then prepare objections to – the presentencing report prior to his sentencing, currently scheduled for May 21.
After Judge Brodie made her rebuke of the BOP’s management of the MDC and MCC, Deirdre von Dornum, of the Federal Defenders, reported that some calls were being permitted through she heard nothing from inmates who had fallen ill.
Von Dornum said that attorneys know nothing about their clients’ condition once they are isolated for showing symptoms of COVID-19 or testing positive for 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.
The judge agreed this is a problem.
“That is an issue that BOP needs to resolve,” said Judge Brodie. “Lawyers should have access, even if their inmates are isolated.”
Jeffrey Oestericher, an attorney for the Orwellian-named Department of Justice, had a different view than the judge.
He argued that inmates don’t need to make phone calls during the time they are quarantined since they will either get better or die fairly soon. If they die, they don’t need a lawyer, and if they get well, the lawyer can wait the few weeks the prisoner is in quarantine.
“Inmates in isolation often have a certain time period that they’ll be in isolation and then they’ll be released,” Oestericher said. “And each inmate is in a different situation where they might be actively very sick, near the end, awaiting test results, etc.”
Judge Brodie did not completely buy into that argument, saying that the BOP should not decide when 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.
Still, the BOP argued, it is an impossible problem to solve. The sick or potentially sick cannot make calls because staffing is down 10% since COVID-19 and janitorial staffing, which would clean the affected areas in the halls, is down 20%.
How could they solve such a thing?
The judge says they should make calls to lawyers; the BOP says they cannot bring them out to make the calls and risk infection.
The BOP and management at MDC and MCC were stymied.
They’d like to go along with the judge, but they simply can’t bring out sick or quarantined prisoners to where the phones are; that would risk infection to others.
There is a reason why Margo K. Brodie became a federal judge: Her ability to solve complex legal and logistical issues.
She came up with a stroke of pure genius: How about bringing a cell phone to them?
“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.
After this brilliant and innovative thought was articulated, legal counsel for MDC agreed it was both a novel and stupendous idea.
“We absolutely will,” said MDC lawyer Seth D. Eichenholtz, adding that BOP would “make sure there is a method by which this can happen.”
But counsel for the MCC pushed back.
“MCC views the protocol a little differently….,” said Oestericher.
He felt negotiations should take place over the actual need for an inmate to talk to an attorney before a call was actually approved.
“We agree to a procedure where we would confer with the Federal Defenders about the timing and need for the call,” said Oestericher.
Judge Brodie did not buy into this argument completely either. She further said that the inmates, when they do talk to their attorneys, should not have to make calls in the halls, but should be allowed to speak privately to their attorneys.
Which brings us back to the cell phone idea.
A simple cell phone cost less than $50 a month.
Why didn’t anybody at the BOP think of this sooner?
Frank Report’s founder and lead writer Frank Parlato is one of the internet’s most acclaimed investigative journalists. His writing and investigations have helped expose major criminal organizations and scandals.
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