March 30

The seriousness of the pandemic became more evident yesterday, with hospital ships floating into New York and LA to take on excess patients. Staying inside on another rainy day, there was not much difference between Sunday and Monday, but habits formed by 25 years of lawyering had me typing early.  By the end of the day, I had filed four motions asking federal judges to release defendants from prison as they await trial, based on the fast-growing risk that the pandemic will hit prisons with a vengeance because social distancing is not possible in that setting.  Not one member of judicial staff responded to my correspondence sending the filed motions. There was no response from “chambers” to schedule a hearing or even acknowledge receipt of the written submissions. This tells me that judicial staff are not reporting to work at the federal courthouse, despite its reopening on March 30, because they correctly perceive a massive risk to their health from doing so.

Another odd circumstance was the complete lack of similar motions by other lawyers in the other cases I am involved in. Three of the four cases where my clients are in custody involve multiple defendants. In a newer case, the Superseding Indictment alleges that the defendants took part in various drug and sex trafficking-related criminal activities at a rooming house in the City of Reading, thereby conspiring to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962 (d). I don’t write this way, but that’s what the Indictment says. There are 14 other defendants in this case, all in custody, all in massive amounts of trouble, but to date nobody else has filed a motion seeking their release from prison. I am not self-promoting here, just wondering what was happening on the same day the President announced the continuation of pandemic-containing guidelines to April 30. Have people given up, are they so distracted by seamless iPhone access to bad news that they cannot focus, has the unlikely prospect of payment anytime soon for lawyer work led them to do nothing. I don’t know which it is, but I suppose the last excuse for inactivity makes sense.

No pay, no work. A basic rule, one would think, from landscapers to lawyers. But not in the strange world of classical music. It may be my background in this pursuit that leads me to work without assurance of compensation. Learning the cello repertoire involved no pay and all work. It did not even come with the promise of pay in the distant future – what a medical resident can hold on to during the brutal years of sleep-deprived training.  After a decade largely spent in a practice room, attending Juilliard and winning a cello competition, I was still broke. Thirty years later, making money and playing cello are those two ships that pass in the night. Proof can be found in the two months spent preparing for a major recital on February 29. When the applause (a standing ovation, actually) subsided, there were three things to show for it: (1) we got our fingers back, which means we were in performance shape again; (2) neighbors were glad to attend a quality public event without the need to go to Center City; and (3) the Church where we played happily collected a larger donation from those who attended than for a typical Sunday service. There was no economic argument to justify this recital, but still I practice, especially now with closure of my office building and no good reason to enter Center City anyway. Thanks to self-quarantine, I have gotten back the entire Haydn C Major concerto, a piece I played frequently in the mid-1980s but have not touched since then. Is this an accomplishment or a bad habit that cannot be broken? Logic, which I am about to talk about, supports the latter conclusion.

Going back to the motions, there’s not much to disagree with in the opening statement of the one that I filed for a young defendant stuck in an Allentown prison for the past two months: “The neighboring states of New Jersey and New York are now an epicenter of the pandemic in the United States, and it is only a matter of time before the numbers of severely ill Coronavirus patients in Philadelphia, Allentown, and the surrounding cities of Southeastern Pennsylvania drastically increase.” However, I doubt the judge will terminate J’s custody, based on a conclusion that if this is a sufficient reason to release someone from prison, then the entire facility will need to be emptied. Affirmative, Captain. That is the basic approach here, that some problems are so severe that novel measures should be applied to them, especially since this culture reputedly values life above all else. I am not arguing for the release of a homicidal maniac, but that does not matter to devotees of the Socratic Method.

I have been amazed since law school days how professors and other authorities could construct a “logic” argument based on something that is not at issue. Stated otherwise – since my argument, if taken to its ultimate conclusion, would empty the jail, then it must be rejected for a non-violent offender who has every reason to stay inside and out of trouble if he is sent home to his mother (praying every day to saints of the Dominican Republic) during the pandemic. The logic that our judge will likely use to deny my motion has nothing to do with exigent circumstances or even reality, but for reasons I don’t understand much of the legal profession and especially judges are committed to the rule of logic. Taking logic to its own ultimate outcome generally results in doing things as they have always been done. This pandemic may ultimately change that stasis.

I advised the families that I had filed motions seeking the release of their sons from prison, and they responded with thanks, prayers for a good outcome, and questions about when the judge would decide. These filings brought hope, an intangible that improves any situation while it prevails. For this alone, they were worth doing.


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