LESLIE BERMAN
Attorney at Law

Home < About < Motion < Motion re cellphones etc. in court

Motion re cellphones etc. in court by
Leslie Berman

Mailing address:
450 Route 25A #706
East Setauket NY 11733
Phone: 631-675-1139
Fax: 631-883-1064

Motion and Memorandum for Defense Counsels'
General and Specific Courthouse Relief


View the judge's signed order (pdf format)


NOW INTO COURT comes the undersigned attorney who moves this Court for the following general and specific relief: To grant permission to criminal defense attorneys, including undersigned counsel, to bring cellphones, portable digital assistants such as Palm Pilots and the like, and laptop computers and the like, into the courthouse, when an attorney finds it necessary to do so, in order to carry on her/his law practice both in the courtrooms of the Edwin F. Hunter United States District Court house, and while awaiting Court business in other locations within the courthouse, without bringing a specific motion and receiving a specific order for the occasion.

Counsel further moves the Court to amend or promulgate rules and/or standards of courtesy and security for the use of such devices as are deemed appropriate to the mutual needs of the Court, the courthouse and the Bar.

FACTUAL AND PROCEDURAL BASIS FOR THE MOTION

The undersigned counsel has been appointed under the Criminal Justice Act to represent numerous indigent defendants before this Court, sitting primarily in the Edwin F. Hunter United States District Court house in Lake Charles, Louisiana, and has been grateful for the opportunity to serve in that capacity. But as a result of such appointments, counsel has often had to leave counsel’s office for the courthouse at very short notice and for unpredictable periods of time. And as courthouse rules require all persons to leave cellphones, personal digital assistants, and laptops behind when entering the courthouse, making no distinction between attorneys (other than the Assistant United States Attorneys discussed further below) and the general public, such courthouse appearances cause a total communication blackout for the undersigned attorney and all attorneys similarly situated for the periods during which they are in the courthouse, whether or not they are in courtrooms.

Counsel is principal of a small law practice, consisting of herself and one part-time associate attorney, and part-time secretarial staff. Of necessity, there are many times when counsel, her associate, or her assistant must be out of the office to conduct the business of the practice. In order to operate a small firm with numerous obligations in an efficient and cost-effective manner, counsel, her associate and her staff utilize a variety of personal portable electronic devices and programs for timekeeping and billing, for contact with each other as well as clients and witnesses, for legal research and writing, and for other tasks. Those electronic devices include, but are not limited to, cellphones, handheld personal digital assistants such as Palm Pilots (PDAs), laptop computers, and the like. Such tools are vital to counsel’s practice, as all business tasks are recorded and/or performed on or through such devices. When out of the office on tasks other than appearances in Court, counsel and her staff are able to use personal electronic devices freely. Counsel is even able to bring such devices into the Calcasieu Parish Prison when visiting federal criminal clients, as the Sheriff’s Department makes a special exception for attorneys and law enforcement officials.

Furthermore, counsel has recently been trained in the use of electronic evidence presentations by the Federal Public Defenders’ Training Branch, and anticipates the use of such presentations at trial, which require the use of a variety of portable personal electronic devices. Electronic transfers of information over the internet are now the primary manner in which legal research is completed. In addition, the courts in this district are moving toward eventual mandatory use of electronic document filing, necessitating use of electronic document generating equipment by those attorneys practicing in this district. Furthermore, Counsel is aware from numerous discussions with other CJA panel attorneys and the assistant public defenders in the Western District of Louisiana and others, that many attorneys who accept CJA appointments here and elsewhere around the country use a range of personal electronic devices to conduct and maintain their private practices and government-appointed employment, including representation of indigent federal defendants.

In the above-captioned case specifically, counsel anticipates representing her client in a multi-day trial, requiring as witnesses several persons who are not incarcerated, and may be both difficult to locate and to transport to Court, due to their displacement and reduced circumstances resulting from Hurricane Rita. Counsel also anticipates the use of electronic devices to present evidence in this case, and the need for counsel’s entire practice’s personnel resources to assist her in Court, which will necessarily require closing counsel’s office for the trial’s duration. In such and similar instances, counsel will be unduly burdened if she and her staff will be without access to communication and other personal electronic devices while in Court, especially during the extended periods in which they will be absent from their office while participating in trials.

In fact, counsel has been disadvantaged and unduly burdeneded as a result of the restrictions on electronic device use over the last three years on many occasions, having been unable to contact or be contacted by clients and witnesses who have been lost or stuck in traffic on the way to the courthouse, and on whose testimony her client’s defense has relied. In addition, she has had to maintain CJA client timekeeping and billing records in multiple handwritten and computerized formats, creating burdensome and duplicative administrative work, and has been unable to conduct urgent research and writing tasks which could have been undertaken during unanticipated recesses and waiting periods while in the courthouse. Counsel further believes that being unreachable while in the courthouse has had a negative effect on the outcome of hearings in the cases of defendants whose witnesses were unable to locate counsel with vital information; counsel knows that her failure to be reached while in the courthouse has resulted in anticipated witnesses disappearances in CJA matters on several occasions.

The Court has tried to accommodate visiting attorneys’ needs for communication and computer equipment while in the Edwin F. Hunter United States District Court house by offering use of a third-floor room equipped with a telephone, on which, counsel has been reliably informed, only outgoing calls may be made; and a single computer, which counsel has been informed does not include a printer, or allow any access to the attorneys’ own computerized documents. Counsel has also been informed that all visiting attorneys must have equal access to the room on any given court day, and that access to the room must be requested in advance of any anticipated use. No incoming calls may be received on the telephone in that room, so no attorney may be reached by her/his client or witnesses whle using the facilities there. (Interview with JoAnn Benoit, D.I.C., November 2005).

It may be possible to make use of such limited facilities on the third floor in some cases, but many attorneys need access to telephones and computers while awaiting or attending hearings and other court proceedings elsewhere in the courthouse. On several occasions, the Court has been accommodating in allowing attorneys to make outgoing calls from both the Judge’s and Magistrate’s chambers, however, it is clearly a privilege reserved for emergencies, and one that cannot stand in for on-demand access to communication equipment, and, moreover, should not become standard practice.

RULES OF COURT AND COURTHOUSE PRACTICES

The Uniform Local Rules of the United States District Courts for the Eastern, Middle, and Western Districts of Louisiana, Revised May 31, 2005 (http://www.lawd.uscourts.gov; follow “court rules” hyperlink, then follow “local rules” hyperlink) (last visited December 3, 2005) (hereinafter “Uniform Local Rules”) provide for courthouse security. The first rule explains that the purpose of the rules is “to minimize interference with and disruptions of the court’s business, to preserve decorum in conducting the court’s business and to provide effective security in the buildings wherein proceedings governed by these rules are held.” LR83.3.1, Uniform Local Rules, at p. 105. Local Rule 83.3 et seq. governs building security practices for the courthouses of the Western District of Louisiana. Uniform Local Rules, at pp. 104-108. Local Rule 83.3.3 requires inspection of “all objects carried by persons entering the premises” and states that “No one shall enter or remain in the premises without submitting to such an inspection.” Uniform Local Rules at p. 105. Local Rule 83.3.4 provides for a search of anyone entering the building and denies a right of entry to any person refusing to be searched. Uniform Local Rules at p. 105. The rule relevant to the carrying of electronic devices into the courthouse is Local Rule 83.3.8, which makes specific reference to cameras and recording equipment and “other type[s] of electrical or electronic device[s],” but does not specify any of the devices for which undersigned counsel has requested relief. Uniform Local Rules, at p. 106.

Courtesy rules and restrictions regarding the use of personal electronic devices in the courtroom, other than those promulgated in the Uniform Local Rules may be found in several other informational and instructional documents located on the website of the United States District Court for the Western District of Louisiana (http://www.lawd.uscourts.gov), by following the hyperlink for “e-Courtroom” from the Western District’s home page. http://www.lawd.uscourts.gov/e-Courtroom/e-courtroom.html (last visited December 3, 2005). Those documents include “Using Your Own Equipment in the Courtroom,” which states that counsel wishing to use their own electronic equipment in the courtroom “to present exhibits at trial . . . must first get permission directly from the Judge to use the specific piece of equipment (i.e. personal computer . . .)” and the Judge will then inform Court Security Officers of the permission granted. http://www.lawd.uscourts.gov/e-Courtroom/Equip_Your_Own.pdf (author’s emphasis) (last visited December 3, 2005).

The only other information regarding banned electronic devices is found on the web page detailing electronic equipment available in individual courtrooms of the Edwin F. Hunter United States District Court house. Only those of Senior Judge James T. Trimble and Judge Patricia Minaldi are listed. Among the “Tech Restrictions” may be found the statement: “The following are not permitted in the courtroom: Cellular Phones, Beepers, Pagers . . . .” http://www.courtroominformationproject.org/CIPViewCourthouses.jsp?objectID=110676644770 (last visited December 3, 2005). No information is provided as to the availability of electronic courtroom equipment or the tech restrictions of Magistrate Judge Alonzo Wilson’s courtroom.

During the time undersigned counsel has worked for and before the Court, Criminal Defense attorneys and others have been prohibited from bringing electronic devices into the courthouse, while attorneys and staff members working for the prosecutorial branch have not been similarly prevented from bringing personal electronic devices with them to work. This has been true for all manner of government personnel, whether or not they maintain regular offices in the courthouse, including, but not limited to those persons working for the United States Attorney, the United States Marshal Service, the Probation Office, the FBI Safe Neighborhoods Task Force, Homeland Security, Border Patrol, ICE, and employees of other federal, state, parish and local law enforcement agencies.

Furthermore, while defense attorneys have had recourse only to the limited facilities on the third floor or the occasional use of a chambers telephone, the prosecutorial branch has offices within the courthouse, and therefore has continuous and uninterrrupted access to telephones, computers, copiers, fax machines, the internet and online research and communication tools, as well as other electronic devices common to and necessary for efficient office management.

ANALYSIS OF FACTS AND RULES

For some years, courthouse security requirements have prevented defense attorneys and their staffs from bringing cellphones, PDAs, laptops, and other electronic devices into the courthouse without a specific order. Counsel is aware that such orders have been requested by individual attorneys as an accommodation for trials when it can be anticipated that the attorneys will be away from their offices for extended periods. This, however, requires time, and undersigned counsel has had no recourse to such orders as yet, as much of her Federal criminal practice consists of hearings before Magistrate Judge Alonzo Wilson, whose docket is scheduled with urgency in light of speedy trial act requirements. Appointments to represent indigent defendants at such initial appearances and related hearings are mostly made in times and circumstances leaving little or no room for preparing, filing and receiving approval of such motions.

This courthouse has grappled with security issues for some time. An entryway metal detector and x-ray machine have long been in place, and other protections including sign-in sheets have since been instituted. But not all persons entering the courthouse are subject to search or x-ray of their parcels as required by the Uniform Local Rules. Courthouse employees, law enforcement officials, prosecutorial branch employees, and others have been regularly observed entering the courthouse through alternate doors, bypassing the x-ray and metal detector, having been waved through by the CSOs on duty, without having to show identification. This appears to be due to the CSOs recognition of those persons, and a special relationship with the Court that those employees and visitors enjoy.

But many defense attorneys and those attorneys’ staffs visit the courthouse with sufficient frequency that the CSOs know and recognize those persons by sight as well. When this Court instituted a sign-in and sign-out system for security-related purposes, all attorneys, including those known to or recognized by the CSOs, were required to sign in and out. However, shortly after instituting this sign in and out system, attorneys known to the Court were told that we were now exempted from the requirement. Undersigned counsel has observed that unknown attorneys do not merit this special treatment, and are required to sign in when entering the courthouse.

In other jurisdictions of which counsel is aware, attorneys are asked to show their bar membership cards for court access, and are then directed to an attorneys only entry line with metal detector and x-ray machine, bypassing the general public line. Relaxation of the signing in and out procedure for attorneys who are known to the Court or who provide the Court with attorney identification acknowledges the special relationship attorneys have to the Court, while scanning bags, briefcases, and contents of pockets of those attorneys copes with the security issues raised by closed packages and private spaces. In this courthouse, attorneys unknown to the Court could show identification cards to the CSOs, or other procedures might be adopted to suit this particular jurisdiction. Adding certain electronic devices to the list of attorneys’ ordinarily acceptable baggage would not unduly burden the security scanning system already in place. Nor would allowing attorneys to bring in electronic devices prevent greater scrutiny of questionable items, as is the current procedure.

As for courtesy and security rules authorizing and regulating the use of personal electronic devices, these may easily be instituted, and those breaching such rules may readily be reprimanded by the Court as provided for in the Uniform Local Rules. Such options might require attorneys to place their phones in vibrate or silent mode, so as to avoid disruption of Court proceedings, and those who are able to answer their calls might be required to speak only outside the courtroom, and to speak both quietly and away from others where their conversations might interfere. PDA and laptop computer users might be required to disable any sounds which those devices might make or to refrain from use of certain programs if that is deemed advisable for courtesy or security purposes. Other electronic devices might require different accommodations to avoid creating disturbances or nuisances. Such a system could be instituted on a trial basis, and adjustments of conditions might be made as the system is used.

CONCLUSION

Following Hurricane Rita and the slow return of basic services to the City of Lake Charles, including electricity, telephone and cable systems, undersigned counsel became even more aware of her practice’s reliance on constant, immediate and comprehensive communication services – in order to effectively meet the competing needs of clients, witnesses, Court personnel, office staff, and outside contract service providers – and the detriment to and burden on her practice when such services were unavailable, unreliable, or otherwise limited. Discussions with other CJA panel attorneys and assistant federal public defenders have indicated that counsel’s difficulties absent such accommodations have been their difficulties too.

The Uniform Local Rules were promulgated to prevent interference and disruption of the court’s business, and a breakdown of decorum. Bringing personal electronic devices into the courthouse need not pose a threat to either the Court’s business or to courtroom and courthouse decorum. Attorneys may be accommodated as a special group without incurring a greater security risk, or a greater assault on decorum than the Court guards against with its standard practices.

For the foregoing reasons, undersigned counsel requests that the Court permit her and other defense attorneys to carry and use personal electronic devices in the Edwin F. Hunter United States Court house without special, individualized permission, and asks the Court to promulgate rules and standards for the introduction and use of such devices.

Respectfully submitted,

s/ Leslie Berman
Leslie Berman
Attorney for the Defendant
Louisiana Bar No. 27775

© Leslie Berman 1993 – 2018