Judge John Roll's Successor Declares 'Judicial Emergency' in Arizona

Chief U.S. District Judge John M. Roll may have stopped by to say hello to Rep. Gabrielle Giffords at that Tucson Safeway on Jan. 8 -- a simple gesture that cost him his life -- but he was there mostly so he could talk business with the federal lawmaker and her staff about what he called a "tsunami" of criminal cases battering Arizona's federal courts. There were, he had often said to anyone who would listen, just too many felony cases for too few judges with too little resources, especially in Tucson.

In fact, just six weeks before his death, Roll asked his bosses at the 9th U.S. Circuit Court of Appeals to declare a "judicial emergency," an act that would allow Arizona's federal judges to delay bringing accused felons to trial. "Without the possibility of relief from a declaration of judicial emergency, Tucson division is simply unable to absorb the enormous increase in felony cases being scheduled for trial while remaining compliant with the time limits set by the Speedy Trial Act," Roll wrote to 9th Circuit Chief Judge Alex Kosinski on Nov. 24. "We've reached a choke point."

Roll did not live to see his request granted. But on Tuesday, less than three weeks after he was shot by accused gunman Jared Lee Loughner, Roll's successor finally did declare a "judicial emergency" in the state after consulting with the 9th Circuit's Judicial Council. The move by Chief U.S. District Judge Roslyn O. Silver allows federal judges in the state to wait for as long as 180 days between the time of the indictment or complaint and the time of trial, even if a criminal defendant wants to go to trial more quickly.

The administrative move could delay the Loughner case itself, depending upon whether the 22-year-old defendant's attorneys try to change the trial venue from Arizona to another state or if federal prosecutors decide to seek the death penalty against Loughner. Most federal murder cases do not go to trial quickly anyway, in large part because of the significant pre-trial work it typically takes for lawyers to prepare their cases. The government has not yet charged Loughner with a capital crime. The next hearing in the case is set for March 9.

The extraordinary action by Silver was taken because of the sheer volume of cases. According to the 9th Circuit: "The Arizona federal court has the third highest criminal caseload in the nation, driven by illegal immigration and drug smuggling across the U.S.-Mexico border. Criminal cases have increased 65 percent since 2008, when the federal government greatly expanded its law enforcement efforts along the border. The bulk of the criminal caseload is assigned to the court's Tucson division, where three judges currently handle approximately 1,200 cases each" (emphasis added).

Kosinski, who is also chair of the Judicial Council, said Tuesday in the wake of Silver's declaration: "The district court in Arizona urgently needs additional resources. Judicial vacancies need to be filled and new judgeships should be given strong consideration. There is also a need for more court staff and facilities." Kozinski and the council also extended the duration of Silver's one-month emergency declaration to one year, and urged quick action on Capitol Hill to help solve the overcrowding problem.

It was that interbranch connection -- between jurist and lawmaker over the professional functions of both -- that drew Roll to see Giffords on that fateful Saturday morning. According to the criminal complaint against Loughner, which was filed in federal court on Jan. 9, Roll "had worked with Congresswoman Giffords within the last several months to resolve issues related to the volume of cases filed in the District of Arizona" and was notified about the event by telephone the night before.

The 9th Circuit noted that "the Arizona federal court is authorized 13 judgeships and currently has three vacancies, two of them in the Tucson division. Based on its caseload, the court is eligible for as many as five additional judgeships." Roll's death created one of those vacancies. Another, created when U.S. District Judge Frank Zapata took senior status, has existed since last August. The third vacancy, created when U.S. District Judge Mary Murguia was promoted to the 9th Circuit, has existed since last January.

Earlier this month, just a few days before Roll's murder, President Obama nominated (or, in some cases, renominated) 42 judicial candidates to fill the 101 current vacancies on the nation's courts. However, none of the president's current nominees would fill the Arizona vacancies and it is unclear when the remaining vacancies will be filled. Judges in some federal judicial districts have waited years for replacements or for the addition of new judges to be confirmed by the Senate.