Judges in S.D. Carry Nation’s Top Workload : Crime: War on drugs helps keep San Diego federal court at No. 1 spot for second year in a row, according to U.S. figures.

For the second year in a row, San Diego’s federal judges have the heaviest criminal caseload of any federal court in the United States, according to statistics just released in Washington.

At 153 cases per judge, the filing rate at the San Diego court in fiscal 1992 was three times the national average, according to a federal judicial management office.

In San Diego, where the federal court traditionally has been loaded with cases linked to the U.S.-Mexico border, the crushing caseload dramatically illustrates the impact of the so-called “war on drugs.” Three of every five criminal cases filed in fiscal 1992 in the San Diego federal court were drug-related, according to the figures.

Driven by drugs, the nation’s No. 1 criminal caseload “is a record we wish we didn’t have,” said San Diego’s chief federal judge, Judith N. Keep. It is also a record that carries with it a range of ominous effects--consequences that bode ill for the nation’s system of federal courts.

“You are talking about the busiest district in the country,” said Mario Conte, head of Federal Defenders of San Diego Inc., the local federal public defender agency, which is growing from 19 lawyers to 22, to keep up with the work. “But all we are is a reflection of a trend--and a precursor of what is to come everywhere else.”

With a criminal docket dominated by drug crimes, the San Diego court has evolved into a “police court,” where the concept of individual justice competes with the practical necessity of moving cases along, Keep said.

“It is a little bit overwhelming, the pressure that we are under at this time, just to keep the cases moving,” said Judge Earl B. Gilliam. A former San Diego Municipal Court judge, Gilliam said his federal workload is far more severe--and, at the same time, far more intense--than even the parade of offenses he used to see each day in state court.

“Obviously, a traffic violation doesn’t have the same import as 10 or 15 years or life in prison,” Gilliam said.

The constant criminal load is wearying, judges said. “I am up at 6:30 every Saturday morning reading pre-sentence reports,” Judge John S. Rhoades said. “It is endless.”

Most ominously, civil cases--long the hallmark of the federal courts, where the nation’s civil liberties questions and significant business disputes traditionally have been thrashed out--have by necessity been relegated “to the back burner,” Keep said.

Under federal law, a criminal case must go to trial within 70 days or be dismissed. Inevitably, the civil docket gets pushed aside, she said.

Rhoades said he has not tried a civil case since August, 1989. Last week, Judge Gordon Thompson Jr. presided over his first civil trial in a year, a copyright suit.

Civil trial lawyers said they have come to regard the court with a mixture of regret and frustration.

It takes 21 months to get a civil case to trial, up from 18 months just two years ago, according to the figures, released last week by the Administrative Office of the U.S. Courts.

But the median time from filing to disposition dropped to nine months, three months quicker than it used to take two years ago. In more than 90% of the cases, disposition means settlement.

In part, Keep said, that is because of a pilot program that pushes civil cases toward settlement. In turn, lawyers said, settlements are driven by the seeming futility of getting a trial date.

It appears to take a special case, one with constitutional or communitywide significance, just to get noticed and onto the civil trial docket, said Tom Laube, a prominent San Diego trial lawyer.

“The perception is that, unless you have a case with importance to more than the individual litigants, your chances are very slim in getting a case to trial in front of (San Diego) judges,” Laube said.

Until recently, it wasn’t this way. “It used to be just the opposite,” Laube said. “In federal court, your case would move along fairly quickly. You would come up to the eve of trial much sooner than in state court. Not anymore.”

Whipped by the political appeal of appearing tough on crime, Congress has enacted entire new sections of the federal criminal code over the last few years, essentially creating an entire body of law that copies state criminal laws.

By far the most important change has been the result of the so-called drug war. Until 1986, drug-related crimes were governed almost entirely by state law. That year, Congress made virtually all such crimes federal offenses too.

Since 1980, drug filings in the federal courts have increased by 280%.

“Really, for the first time in the history of the United States--well, I don’t know of any other time in history--the states have given up their police powers to the federal government without a whimper,” Keep said. “But essentially the states are broke. So the states are willing. It is an incredible phenomenon.”

The San Diego court has always been incredibly busy. But, mostly because of drug crimes, it has seen an astounding jump in its criminal docket in just three years.

The San Diego court hears cases from the nation’s sixth-largest city, from the length of California’s border with Mexico and from the rest of San Diego and Imperial counties. Though it covers an extensive area, the court is allocated only eight full-time judgeships.

In fiscal 1990, San Diego’s federal judges had the nation’s seventh-highest per-judge criminal workload, according to the Administrative Office.

In fiscal 1991, the San Diego court shot up to No. 1, fueled by a 24% hike in indictments filed by the local U.S. attorney’s office. Indictments spell out felony charges, meaning those that can lead to a year or more in prison.

In fiscal 1992, which ended June 30, filings went up another 7%, to 1,203 indictments from 1,123.

The Administrative Office added to the count 16 cases that were transferred to San Diego after indictments were issued elsewhere, swelling the 1992 total slightly, to 1,219.

Dividing 1,219 indictments by eight judges yields 153 felonies per judge--which, for the second straight year, according to the statistics, makes the San Diego criminal caseload No. 1 in the nation.

The No. 2 court, in Asheville, N.C., with three judgeships, took in 439 cases, or 146 felonies per judge. The third-ranked court, based in Phoenix and serving the entire state of Arizona, has eight judgeships and had 1,061 cases, or 132 cases per judge.

The national average, the Administrative Office said, was 53 felonies per judge.

Having many more judges, the federal courts in Los Angeles and San Francisco had a significantly lower per-judge rate than the San Diego court.

There actually were more federal indictments filed in fiscal 1992 in San Diego than in Los Angeles--1,203 in San Diego, 1,031 in Los Angeles. But the Los Angeles court has 27 judgeships, and even accounting for three dozen cases that were transferred there, the rate figures out to 39 criminal cases per judge.

In San Francisco, where there are 14 judgeships, the rate was 25 criminal cases per judge, 89th among the nation’s 94 federal courts.

Though No. 1 in the country at 153 per judge, the San Diego figure actually is misleading. The real rate is much higher.

Through all of fiscal 1992, the eight-judge San Diego court operated with only six judges. That means the real caseload for each of those six was not 153 per judge but a whopping 203.

One of the two vacancies, created by the 1990 retirement of Judge J. Lawrence Irving, was finally filled last month, when former San Diego Superior Court Judge Irma Gonzalez was sworn in.

President Bush has nominated San Diego lawyer Jim McIntyre for the eighth spot, a new position created by Congress in 1990. But McIntyre’s nomination has been stalled by political infighting between the President and Congress, and his chance for the bench hinges on Bush’s reelection.

“We sure could use another judge,” said Judge Rudi Brewster. “But that is the understatement of the year.”

The blame for the caseload, judges insisted, does not lie with San Diego’s chief federal prosecutor, U.S. Atty. William Braniff.

Because of national drug policies, Keep said, “There is a problem as to how free (Braniff) can be. But essentially I have to say he has been very sympathetic to us and trying to work with us.”

Of the 1,203 filings, 472 involved marijuana. Another 242 involved narcotics. The combined marijuana and narcotics total, 714 cases, amounted to 59% of the caseload.

Another 181 cases, or 15%, were immigration cases, according to the statistics.

Together, drug and immigration cases amounted to 74% of the San Diego criminal docket. The remaining 26% included fraud, embezzlement, theft, forgery, robbery and homicide. Fraud prosecutions actually went down from the year before, from 73 filings in 1991 to 58 in 1992, according to the statistics.

It was a very different story in the drug categories. There were 200 more marijuana cases in fiscal 1992 than the year before, up to 472 from 272, a 74% rise. The fiscal 1991 number, meanwhile, had been up 75% from the year before that.

The 242 narcotics filings in fiscal 1992 were up slightly from the year before, rising 5% from 230 in fiscal 1991.

Braniff, who has continued the historical pattern of making a San Diego prosecutorial priority of “border busts,” meaning arrests at or near the border, said he had no real other choice. His figures show that 61% of the drug crimes his office filed last year came from “border busts.”

“What are the alternatives?” Braniff said. “Unless we are going to decriminalize a large segment of the drug importation from south of the border, we are going to continue to have to do the best we can to exact some price on the criminal population.”

Defense attorneys insist there is a choice, and that Braniff’s priorities are misplaced.

“There is no reason that judges here ought to be dealing with 153 cases per judge when a good number of those cases are 30- and 40-pound marijuana busts and felony illegal re-entry cases,” said Judy Clarke, a former federal public defender now in private practice.

“It seems to me,” Clarke said, “that federal dollars--precious and few federal dollars--ought to be allocated in a way that sees that major crimes are prosecuted, not just in a way that generates a high (volume) of cases.”

Trying to keep pace with the criminal load, the San Diego court has been “very willing to try new things,” Keep said. The court recently began a formal pretrial settlement program, once a week sending 40 cases at a time to a judge, hoping for plea bargains.

In addition, the court has implored federal judges from other cities to come to town on an emergency basis to preside over criminal trials. “Without these visiting judges, we would be drowned,” Brewster said.

“The problem is,” Keep said, “we are running out of ways we can be innovative. You can’t always think of new things to do. And I don’t know where there is any more play in the system.”