Case Closure Rates Get Longer as E-Discovery Increases

Federal Public Defender Jon Sands was making final preparations before a multi-defendant drug trial, when he was interrupted by an email containing his defendant’s cell phone records.

The messages had the potential to transform the case, but Sands’ small trial team had only a few days to sift through terabytes’ worth of data. If they couldn’t, Sands would have to ask for a continuance, forcing his client – who already was being held in pretrial detention – to spend more time behind bars.  

“Defenders are under an immense amount of stress,” said Sands, who leads the District of Arizona’s Federal Defender Office. “We don’t have the staffing resources necessary to process the influx in discovery. Ultimately it will cause our clients to suffer, as we continue to face attrition as a result of staff burnout." 

Across the country, federal defender offices are struggling with increasingly complex litigation marked by escalating electronic discovery demands. Staffing shortages and the lingering effects of the COVID pandemic have added to their challenges.

These factors have contributed to criminal cases taking a median of 10.4 months to close from filing to disposition in 2023, a 60 percent increase from just five years ago, when the median case closure time was 6.5 months in 2018, according to data from the Administrative Office of the U.S. Courts. 

“The more data there is, the longer it takes to close a case,” said Jodi Linker, who leads the Office of the Federal Public Defender for the Northern District of California. “In a routine drug case, we’ve gone from roughly 100 pages of physical discovery to having that, plus hours of body cam footage and multiple electronic devices with text messages and social media posts to review.”

Federal defender staff use a digital platform to find, collect, and analyze electronic discovery data for legal proceedings. But only so much can be done through technology alone, defenders said. 

“It takes a lot of people to analyze all of that information, to be sure we are presenting the most thorough, competent, and zealous defense,” Linker said. 

Defender offices are currently in a hiring freeze as the Judiciary awaits its FY 2024 budget.

Judge Amy J. St. Eve, chair of the Judicial Conference’s Budget Committee, and Judge Roslynn R. Mauskopf, then-secretary of the Judicial Conference, sent a letter to Congress in July 2023 regarding funding concerns for defender offices.  

“To provide some context and perspective, the funding shortfalls at the House and Senate levels would have consequences comparable to the sequestration cuts in FY 2013 and early FY 2014,” the judges wrote. Those cuts led to 500 layoffs in defender offices, and more than 20,000 days of employee furloughs, as well as cuts in hourly compensation and delays in payments to court-appointed private lawyers.

“In many judicial districts, attorneys were not available to provide representational services as needed by the courts, resulting in case delays,” the letter noted. “It took the Defender Services program several years to recover from sequestration. … We ask for your assistance to ensure that funding shortfalls do not again constrain our ability to provide court-appointed counsel to eligible defendants.” 

Federal defenders represent clients who can’t afford to pay for an attorney – a right guaranteed by the Sixth Amendment to the Constitution.

“Our program is in dire need of additional positions just to manage the work we currently have,” said Monica Foster, executive director of the Indiana Federal Community Defender’s Office. “Every time we ask for a continuance because we can’t be ready, because we don’t have the resources to be ready, is more time that our client – a presumed innocent person – has to remain in an overcrowded cell, miles away from their family.”