Judicial Conference Continues Work Postponed in Wake of Tragedy

Continuing with the business of the federal Judiciary following the terrorist attacks, the Judicial Conference has considered additional recommendations postponed from its September 11 meeting. Many of the time-sensitive committee recommendations that were to have been considered by the Conference at its meeting were submitted to the Conference through an initial mail ballot. The balloting results and the policy actions were announced in the September issue of The Third Branch and are available on the Judiciary’s website at http://www.uscourts.gov/Press_Releases/jc901a.pdf.

Subsequently, a second mail bal-lot on the remaining recommendations was considered by Conference members and all items were approved.

Regarding patients rights legislation the Conference took the following actions:

• Continued to recognize that state courts should be the primary fora for the resolution of personal injury claims arising from the denial of health care benefits;
   
• Expressed concern with any provision in patients’ rights legislation that would create a new cause of action in federal court for personal injury claims arising from medically reviewable (e.g., necessity of treatment) benefit decisions;
   
• Encouraged Congress, in any such legislation, to provide state courts with jurisdiction (concurrent or otherwise) over any suits to compel insurance plans to provide interim medical benefits on an emergency basis and to bar removal of such suits.

Bills are pending in Congress to extend new rights and procedures to participants in employer-sponsored and other health insurance plans, including health maintenance organizations. Two bills in the House and Senate have the same name, the Bipartisan Patient Protection Act, but considerably different provisions. Conference policy regarding any proposed legislation focuses primarily on legal recourse and other provisions that implicate the jurisdiction of the federal courts.

Regarding the use of video-teleconferencing in criminal cases, the Conference voted to

• Amend Rules 5 ( Initial Appearance), 10 (Arraignment), and 43 (Defendant’s Presence) of the Federal Rules of Criminal Procedure to permit defendants’ initial appearances to be conducted by video-teleconferencing with the defendant’s consent, instead of requiring their physical presence. Today, well over 100 federal court sites are equipped with video-teleconferencing capability that is used for a wide variety of matters, including prisoner proceedings, settlement conferences, and bankruptcy hearings. This technology provides flexibility for judges and defendants, reduces courtroom security risks, and may eliminate some scheduling delays and expedite the defendants’ release. Now that they have been endorsed by the Conference, these rules changes and others previously approved will be transmitted promptly to the Supreme Court, which by statute must transmit proposed amendments to Congress by May 1 of the year in which the amendments are to take effect. Congress has a statutory period of seven months to act on any rules prescribed by the Supreme Court. If Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1, 2002.

Regarding legislation pending in the 107th Congress to enhance the availability of post-conviction DNA testing in federal and state criminal justice systems and to ensure competent counsel in state capital proceedings, the Conference

• Supported the goal of establishing fair and uniform standards for post-conviction forensic DNA testing in the federal criminal justice system;
   
• Supported the goal of affording innocent people wrongly convicted the opportunity to obtain DNA testing relevant to their claim of innocence, but opposed provisions that would entitle a person convicted of a non-capital federal crime the right to apply to the sentencing court for DNA testing in connection with an offense used for sentencing purposes;
   
• Supported provisions that would give federal courts discretion to appoint counsel for a financially eligible person who is convicted of a federal crime and is applying to the federal court for DNA testing in connection with that conviction;
   
• Supported the goal of ensuring that capital defendants have competent legal representation in both state and federal capital proceedings at every stage of their cases;
   
• Supported giving the Judicial Conference the opportunity to provide input to any national commission established to set standards specifying the elements of an effective system for providing adequate representation to indigent persons fac- ing the death penalty, but opposed requiring members of the federal Judiciary to serve as members of the Commission; and
   
• Supported the award of grants for the purpose of providing defense services in connection with representation both in state capital trials and appeals and in state and federal post-conviction proceedings, except that, with regard to funds to be used in state court, supported the federal Judiciary’s providing input into, but opposed the federal Judiciary’s being responsible for, the administration of such funds.

With regard to provisions affecting state criminal justice systems that raise issues of federalism and resource burdens:

• Opposed provisions that would entitle individuals not in custody to seek post-conviction DNA testing to challenge a state criminal conviction.
   
• Expressed concerns with provisions that would displace state time limits and procedural default rules as applicable to individuals convicted after DNA testing became a routine feature of the state’s criminal justice system;
   
• Encouraged Congress, to the extent it conditions the receipt of federal funds on a state’s certification that it will provide DNA testing, to limit such conditions to those grants that relate directly to developing or improving a state’s DNA analysis capability or to collecting, analyzing or indexing DNA material for law-enforcement identification purposes;
   
• Opposed provisions that would permit the routine naming of state judges as defendants in any new federal cause of action to obtain DNA testing or evidence;
   
• Encouraged Congress in addressing the consequences of a state’s failure to provide appropriate post-conviction DNA testing, to consider making any federal judicial remedy available only where the state judicial system fails to provide an adequate and effective remedy;
   
• Opposed provisions that would require the Attorney General to withhold certain prison funding to a state if that state permits the death penalty but does not meet the national standards specifying the elements of an effective system for providing adequate representation in state capital cases as established by a national commission;
   
• Opposed provisions that would require states to certify that as a condition for receiving certain federal grants, juries having a role in determining the sentence in a capital proceeding are instructed as to all statutorily authorized sentencing options, including parole eligibility rules, if a defendant so requests;
   
• Authorized the Director of the Administrative Office of the U.S. Courts to work with chairs of the respective Judicial Con- ference committees to suggest to Congress modifications of the relevant legislation that address the concerns of the Conference.