If the partial government shutdown continues past early February, justice may be seriously imperiled across Southern Illinois, said Chief Judge Michael J. Reagan of Federal District Court for the Southern District of Illinois.
The federal court is quickly running out of money to pay jurors, and to fund expert witnesses to testify on behalf of indigent defendants whose cases are being handled by private court-appointed attorneys, Reagan said. And those private attorneys, though they have continued to fulfill their duties, have been working without pay since December.
The federal court’s roughly 100 employees in Benton and East St. Louis have not missed a paycheck yet, but they could soon as well. If the budget standoff continues, employees will only receive pay for one week in their Feb. 8 check instead of two, and they will not receive a salary after that until the government fully reopens, he said.
“We’ve got single moms here like the rest of the world that live paycheck-to-paycheck. We’ve got people with mortgages due,” he said. But the consequences of a lapse in funding will extend far beyond employee hardships and could undermine the entire judicial system, he said.
In just a few short weeks, Reagan said he may be forced to place a moratorium on all civil jury trials.
That’s not an option for criminal cases because defendants have a right to a speedy trial, to take place within 70 days of arraignment. If the court can’t make that happen, the defendant could be set free, he said. If such a situation arises, Reagan said the court would make an effort to bring in as many potential jurors as possible to seat a jury of 12 willing to serve with the understanding that they would receive their $50 per diem and mileage reimbursement when the government is fully funded again.
But a jury serving on a promise of an IOU may present challenges to a defendant’s constitutional right to a fair trial, he said. Jurors may rush to judgment to end a case more swiftly than they otherwise would if they were getting paid. Further, if only people who can afford to wait for payment are able to fulfill their jury duty, that could result in a jury stacked with people of means, rather than one representative of a cross-section of the community, Reagan said.
“This is something we’ve never faced before,” said Reagan, who was appointed to the federal bench nearly two decades ago. “I’ve never seen a situation where our mission of equal justice under the law is truly threatened because of lack of funding.”
When private attorneys are court-appointed to handle indigent defense cases because of conflicts of interest with the Federal Public Defender’s Office, they must receive court approval for any expenses over $800 such as for expert witnesses to testify at trial. Funding for those types of expenses also will be exhausted in early February, Reagan said. An example of a case where the court might approve such an expense is for one involving a defendant charged with dealing ice meth whose attorney wants to hire an expert witness to challenge the government’s potency claim. Ice, also known as crystal meth, is a more distilled and potent form of methamphetamine, and carries a higher sentence. Therefore, the government’s drug purity measures are commonly challenged at trial in such drug cases.
“If they can’t get their experts then I think the attorney would have the right, on behalf of the defendant, to claim his constitutional rights have been abridged, and therefore he’s entitled to be released,” Reagan said.
He said the court has never been in that situation, but it also has never faced a government shutdown of this length and potential magnitude on the judicial system. Reagan said he’s already informed the U.S. Attorney’s Office for the Southern District of Illinois that it should plan to hold grand juries, which serve to determine whether charges should brought in a case, in either Benton or East St. Louis, rather than both locations as is typical, if the partial shutdown continues.
Many employees of the U.S. Justice Department already have been furloughed, requiring the short-staffed U.S. Attorney’s Office for the Southern District of Illinois to request continuances for non-critical cases, he said.
On Friday, The Southern Illinoisan called the regional U.S. attorney’s office seeking comment on the shutdown’s impacts. The office employee who answered the phone ticked down a list of people who could take media calls, determining which ones were on furlough, before finding someone to whom she could transfer the call, which was not returned.
All of these delays lead to a backlog once the judicial system is fully operational again, Reagan said.
Local sheriff’s departments who house inmates in their jails awaiting federal trials may also see payments suspended. ‘
Williamson County Sheriff Bennie Vick said his department receives $60 per federal inmate per day. The jail may house anywhere from 10 to 20 inmates at a given time, he said. Vick said he received a letter from the U.S. Marshals Service in December letting him know payments may be delayed. But Vick said that for Williamson County, that does not present any problems, because he knows the federal government will make good on the payments as soon as possible. “We’ll work with them to do what we have to do to provide them service,” Vick said.
The partial shutdown was triggered at midnight on Dec. 22 as Congress and the White House failed to reach accord on funding for nine cabinet-level departments and dozens of agencies. President Donald Trump insisted he would not sign a bill that doesn’t include $5 billion to build a border wall, a demand congressional Democrats have refused.
Late Friday afternoon, Trump tweeted that he would be “making a major announcement concerning the Humanitarian Crisis on our Southern Border, and the Shutdown,” at 3 p.m. on Saturday live from the White House. His office provided no further information about his planned announcement, according to numerous national media reports.
Meanwhile, Reagan said he plans to bring his golden retriever -- Tique -- to the courthouse in East St. Louis on Tuesday “to calm many of the staff who are anxious” and brighten the mood around the office during this uncertain time.
“It probably violates GSA’s rules,” he said of the General Services Administration, the federal government’s landlord agency, “but I’m not concerned about it because the people who would enforce it are on furlough.”
“I don’t care if you put that in,” he added.