Page 267 - Ad Hoc Report June 2018
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 not, distrust and miscommunication complicate the relationship between defenders and CMSO. This distrust was evident in testimony. For example, Mr. Zaso, stated that CMSO employees had never attempted to gain access to a defender data program without first informing NITOAD or DSO, after defenders had previously testified that this had, in fact, occurred.1040 And although Mr. Zaso stated that the relationship between his office and the defenders could be productive, he voiced frustration with the challenges to CMSO’s ability to fulfill its role maintaining defender software con- tracts, as “...problems have been occurring for years, to be honest with you. In fact, two of the last people that left my office one of the reasons they cited when they left was some of the issues in dealing with the [defender] contract issues.”1041
Regardless of past conflicts, it is clear that the current structure has created conflict between defenders and the Administrative Office. Such tension is neither inevitable nor irreparable. However, it is the result of a reorganization that tried to force defender IT into a broader IT system for the courts, where it does not fit. There is a reason lawyers have particular ethical responsibilities and must demonstrate knowledge of those responsibilities in order to be members of the bar. The ethical obligations of the judiciary are no less important, but they are different. Defenders work in an adversarial system that the courts oversee, but are not a party to. An attorney’s obligation to maintain client confidentiality is just that—the attorney’s obligation, and it is among the most important of responsibilities. Thus, defenders cannot entrust their clients’ confidences to an institution they do not and cannot control. In short, the inherently different obligations of the AO and defenders’ offices inevitably result in tension, miscommunication, and uncertainty.
Brian Wiggins, Chief of NITOAD, wrote in 2015:
Putting aside the risk from rogue IT admins or malicious users, having direct access by outside (non-defender) parties to certain data such as case statistics, can be risky. Funding of Defense attorneys for accused criminals is often not a popular item. Judges, outside organizations, and research institutions frequently request statistics on representations, including costs, which can be manipulated by someone without a full understanding of the organization’s operations...This is why it is critical for Defenders, including the Defender Services Office, to strictly control access to this data.1042
This concern was prescient. The Committee learned firsthand during the
1040 SeetheexchangebetweenMr.ZasoandCommitteememberReubenCahnonaperceived“breach” into defender data. Public Hearing—Minneapolis, Minn., Panel 3, Tr. at 29–30. Emails received after the hearing by the Committee showed that a CMSO employee did try to access to a test environment in a defender data program without informing DSO or NITOAD. While there was no confidential data in that test environment, such an incursion registered as an attempt to breach the system.
1041 AndrewZaso,Chief,CaseManagementSystemsOffice,AdministrativeOfficeoftheUnitedStates Courts, Public Hearing—Minneapolis, Minn., Panel 3, Tr., at 20.
1042 BrianWiggins,DeputyChief,NITOADBranch,AdministrativeOfficeofUnitedStatesCourts,Writ. Test., at 2.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 223
 States unless approved by the Conference itself.

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