Mr. Ortega, a long-time deputy federal public defender who was appointed Federal Public Defender by the Ninth Circuit in October, 2020, addresses the serious impact of COVID-19 on federal criminal defendants, and his vision and goals for the Federal Public Defender’s Office.
1. You have served in the Federal Public Defender’s Office now for about a decade. What prompted you to apply to be the FPD and what do you hope to accomplish?
As a Deputy Federal Public Defender, I had the privilege to work alongside colleagues whose passion for our work deeply inspired me. DFPDs advocate for their clients’ constitutional and statutory rights, ensure their stories are heard, and stand up for their basic human dignity. It is a challenging job. Our clients often struggle with a combination of issues, including poverty, untreated mental health conditions, and substance abuse, which require a comprehensive, holistic approach to representation. Though our criminal justice system sometimes acknowledges that these issues underlie criminal behavior, we nonetheless continue to observe harsh charging decisions, limited alternatives to incarceration, and punishment disproportionate to the offense conduct. DFPDs, thus, must be smart, creative, and tenacious in helping clients navigate through the system. And they must often do so with time and resource constraints outside of their control. I applied to be the Federal Public Defender because I wanted to use the skills I learned as a DFPD to advocate for the resources my colleagues need to fulfill our office’s critical mission. The FPD as an institution is on a solid foundation; we have long produced highly sophisticated work for indigent defendants that far exceeds the baseline levels of effectiveness envisioned by the Sixth Amendment. As the FPD, I’m hoping to build on our strong foundation by adding to our skillset and expanding the types of services we provide our clients. For example, I would like to continue developing our technological fluency to keep pace with the increasing types and volume of electronic discovery, and the corresponding defense investigation and case management strategies it necessitates. I also intend to continue my predecessors’ advocacy for the expansion of collaborative courts and diversionary programs, which provide structured treatment to individuals capable of rehabilitation. I am expanding the in-house social support services we provide our general client base, with the goal of equipping our clients with the tools necessary for stability and successful completion of probation and supervised release. First and foremost, however, my focus in the immediate future will be to continue addressing the effects the pandemic has had on our clients’ health and rights, including their right to meaningfully access their counsel and have jury trials.
2. What are some of the bigger challenges facing the Federal Public Defender’s Office and the District today?
The COVID-19 pandemic is by far the greatest challenge our office and the district is presently facing, dwarfing other issues by comparison. For our clients, the pandemic has meant prolonged pretrial detention, delayed jury trials, and hearings primarily by videoconference or telephone. Those clients who are in custody have been endangered by the pandemic—every facility where our clients are held in the district has had significant COVID-19 cases and most have had widespread outbreaks. Sadly, we have had clients pass away from COVID-19. In addition to its impact on court processes and our clients’ safety, the pandemic has complicated, and in some cases stymied, our ability to conduct investigations necessary for motions, trial defense development, and mitigation for plea negotiations and sentencing. It has also, most importantly, deprived our clients of meaningful access to us. The detention facilities in our district have insufficient telephone and videoconferencing capacity—the Court, other federal agencies, private counsel, Criminal Justice Act panel counsel, and our office must all share a narrow number of videoconferencing time slots per day. Limited access to our clients impairs our ability to develop relationships of trust, to review discovery, to develop investigation plans, to discuss whether and how to resolve a case, and to prepare for jury trial. The Court, our office, and every other federal agency involved with the federal criminal process have collaborated closely to address the challenges posed by the pandemic. It has required everyone to think creatively and flexibly about how best to keep our justice system moving forward while also keeping everyone safe. Even as light emerges at the end of the tunnel with the beginning stages of vaccination, substantially more work and collaboration will be necessary as the Court gradually reopens and begins to address the backlog of cases that need to proceed to trial.
3. There is significant public discourse today about criminal justice reform. What reforms would you like to see implemented in the federal criminal justice system?
There has recently been discussion on the national stage regarding further reforms to mandatory minimum sentencing. The First Step Act of 2018 was a welcome development on this front. In the last few years, we have seen an increase in the charging of offenses that carry mandatory minimum sentences. Prosecutors often charge mandatory minimum offenses as leverage to reach plea agreements, even when alternative charges are available. Defendants will regularly accept such plea agreements because they know judges lack the power to decline to impose a mandatory minimum, even where the results would be unjust. An impartial judge, not a party, should determine a fair sentence in a criminal case, particularly when a defendant accepts responsibility. Though legislative process is subject to myriad complexities, the Justice Department can on its own implement policies that restrict the charging of mandatory minimums.
I would also like to see reforms to other federal charging practices that have a disproportionate impact on communities of color and the poorer areas of our district. We regularly represent clients charged for immigration offenses, such as illegal reentry after deportation, even when the person’s criminal history is stale and they are leading a lawful life, other than being present in the country without lawful status like millions of others. The sentences imposed for these types of offenses can be quite high. Over the last several years, we have also seen an increase in the “federalization” of crimes initially charged by local authorities. The most pronounced trend has been in felon-in-possession-of-a-firearm prosecutions. Many of these cases originate with local police initiating traffic stops or conducting searches of people on state probation or parole. Though these persons are charged state-side, they are subsequently charged federally, where their sentencing exposure is much higher.
It would be great to see the federal criminal justice system receive the resources it needs to expand the use of programs that provide alternatives to incarceration for first-time offenders and those who struggle with mental illness and/or substance abuse. We have diversionary programs in place now in the district that have proven this model can be very effective at rehabilitation.
Finally, our office lost a client to federal execution this past year. Absent a legislative end to the death penalty, I hope that the Justice Department will cease authorizing prosecutors to seek the death penalty and that it will halt executions altogether.
4. You are the first Latino/LGBT FPD in the Central District of California. Has your background informed your approach to your work? If so, how?
My background informs my practice every day. I grew up in poor, predominantly Latino neighborhood that resembles our clients’ communities. I feel fortunate that I had support and encouragement as I pursued higher education and a career. It could have very easily been otherwise. In our clients’ faces, I see myself and my family, friends, and neighbors. I know my friends and loved ones would feel vulnerable, confused and afraid upon entering the federal criminal process, and I’d want their attorneys to be compassionate, smart, and unflinching. That is the perspective I applied when I represented individual clients, and it is the perspective I will bring as I lead my office. Being a gay man also informs my work. I have experienced what it feels like to be ostracized and marginalized by the law, which is how our clients can feel in the face of a criminal justice system that can be harsh and unforgiving. At the same time, the law’s positive strides forward in the area of LGBT rights gives me hope that we will inevitably develop more successful and humane ways to address crime and its causes.