Defender Services – Annual Report 2021

U.S. Capitol Breach Cases

The Jan. 6, 2021, breach of the U.S. Capitol building by protesters led to the largest federal prosecution in the nation’s history, both in the number of defendants prosecuted and the volume of evidence. More than 675 individuals across the nation were arrested on criminal charges ranging from trespass and theft to assault on police officers and conspiracy. Many of them relied for their defense on federal defenders or Criminal Justice Act (CJA) panel attorneys, who are private attorneys appointed by a court to represent individuals without the means to retain counsel.

To ensure the availability of qualified counsel to handle the workload, assistant federal defenders were recruited from around the country to assist the Office of the Federal Public Defender for the District of Columbia. The relevant discoverable material involved thousands of hours of video footage from Capitol surveillance cameras, police body-worn cameras, digital devices, and other sources. It also included data from hundreds of personal electronic devices and hundreds of thousands of investigative documents from multiple law enforcement agencies. Staff members from the Defender Services Office’s National Litigation Support Team met weekly with Department of Justice staff to provide input on facilitating the efficient and effective exchange and management of the voluminous discovery in the prosecutions.

Increased Staffing Needs

In 2021, the Judiciary sought to add staffing to federal defender organizations as a result of critical workloads in multiple court districts. The 250 new federal defender positions approved in the FY 2021 financial plan were to help address workloads, provide more managerial support for panel attorneys, support enhanced use of information technology, provide litigation support, and lessen the impact of the caseload surge in Oklahoma as a result of the Supreme Court’s 2020 decision in McGirt v. Oklahoma. 

Pandemic-Related Measures

The long-lasting COVID-19 pandemic placed added strains on federal defenders and CJA panel attorneys, who were challenged to carry out their constitutional responsibilities to defend clients unable to afford representation while mitigating the risk to themselves, their employees, and their clients. As the pandemic dragged on into 2021, federal defense attorneys relied on videoconferencing and teleconferencing for case preparation, client meetings, and court proceedings.

Federal defenders worked closely with IT staff in their court districts to program iPads, iPhones, and other devices with videoconferencing software, enabling them to conduct virtual visits with clients in detention facilities. The National Litigation Support Team provided regular video conferencing assistance to both federal defenders and CJA panel attorneys. In addition to one-on-one assistance, the team created step-by-step instructions for downloading, installing, and using video conference technology. The Defender Services Office provided a series of web-based workshops and resources on fd.org. The resources included information regarding COVID-19's effects on communities and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

Although the virtual communications were a helpful temporary measure during the pandemic, the Defender Services Committee of the Judicial Conference concluded that the technology is not an adequate substitute for in-person communications long-term and revised the Defender Services strategic plan in June 2021 to reinforce the importance of in-person attorney-client meetings as the standard practice. The updated plan clarifies that federal defenders and panel attorneys are expected to visit detained clients in person – even when clients are remotely detained and videoconferencing technology is available – and should be compensated accordingly.

Training for Federal Defenders and CJA Panel Attorneys

In FY 2021, the Defender Services Office conducted 43 national training events for CJA panel attorneys, federal defenders, paralegals, and investigators. The programs included national, local, and webinar events and provided substantive legal training on criminal law and procedure and in-person, skills-based workshops on trial practice, electronic case management, legal writing, and sentencing mitigation. Attendees also received training in administrative and managerial skills. Overall, 18 virtual programs, 20 local programs, and 23 webinars were conducted.