EO 00:02

Okay, can you hear me all right?

CD 00:03

Yes.

EO 00:04

Great. Okay, so hi, I'm Eireann. I'm a 2L, and I worked on the COVID Behind Bars project as a coding, I was on the coding team. So I was reading about policies, and coding it. And now this is my first interview with the oral history side of the project. The purpose of this is to kind of like collect stories of people that practice law in the space of people incarcerated during COVID-19. So we just want to hear about your experience.

And before we start, I am going to read you a kind of disclaimer. So I want to start by explaining how we plan to use this conversation we are about to have. Our conversation is not legally privileged, and we will not keep what you say confidential. We plan to make transcripts and recordings of our interviews available for use by future researchers and the general public and portions may be posted online or discussed - discussed in posts on our website or other published writing. I want our conversation to flow freely, and I realize that you may discuss a sensitive topic or mention a piece of information that you later realize you would like withheld. If you request it now, at the end of the interview, or later on after further reflection, we're happy for you to review the transcript of our conversation before it is made public and to redact any portions you deem necessary from the transcript and recording. So that’s kind of what I explained before. And I'm just going to, like, ask any questions. And if anything else comes up, just let me know. So before we, like, jump into questions, do you want to introduce yourself and talk about what type of law you practice now, what type of law you practiced at the beginning of COVID?

CD 01:51

Sure, yeah, my name is Clare Diegel. I'm a staff attorney at the American Civil Liberties Union of Minnesota. I have been there throughout the COVID pandemic. I actually started during COVID in July of 2020. And we have had three cases regarding COVID In the prisons, at the ACLU of Minnesota.

EO 02:16

Okay, so have you only practiced in Minnesota?

CD 02:20

No, I've practiced in Illinois and Washington state as well.

EO 02:26

Great. In your current…?

CD 02:26

Pre-pandemic.

EO 02:28

Okay, pre-pandemic. Okay. And what type of like, obviously, I'm sure you can't discuss all the details of those cases. But what were those cases like?

CD 02:37

Sure. Yep. So we had three cases. Two were in state court against the Minnesota Department of Corrections. The first was specific to one facility. We had a few clients there who, under the CDC Guidelines, I guess, were noted to be at an increased risk of severe illness or death due to COVID-19. So we filed kind of a preemptive suit, to try to encourage the, this was April 2020, to try to encourage the prisons to release people to decrease the population to institute COVID precautions. That case ended up being basically dismissed as premature, the court basically said, “There's no problem yet.” And then, of course, the problems were immediately apparent after that, and the numbers just skyrocketed in the Minnesota Department of Corrections system.

So then a few months later, we brought a class action that covered every person incarcerated in the Minnesota Department, by the Minnesota Department of Corrections. And so that was our second case. And then our third case, which we brought around the same time, was against the Federal Bureau of Prisons. And that was a class action with 14 named incarcerated individuals who are at a women's prison in Minnesota, it’s known as the Federal Correctional Institute in Waseca, Minnesota, and in that case there, we filed it in December of 2020, after COVID had spread and infected, I want to say I think it was 400 women in two months, or something like that. I mean, just an incredibly scary rate of infection and an incredibly fast rate. And so all of our clients in that case, had, unlike the Minnesota class action and the federal case, all of our clients had underlying conditions that put them at severe risk of death or serious illness if they contracted COVID. And most of them by the point which, by the time we filed our suit, had contracted COVID. And so, unfortunately, those other two cases were also dismissed, not as quickly as the first one. The DoC one lasted about a year. And we actually, the DoC one is the Minnesota case, that lasted about a year and we did have a positive finding from the court. The court did find that the Department of Corrections had breached its legal duty in keeping prisoners safe. But ultimately, as the case progressed, the numbers of COVID infections in the prison started to decrease. The Department of Corrections started vaccinating incarcerated people, which we were obviously very happy about, though the pace of their vaccination process, we thought was slow. And we thought it took them too long to do the initial vaccine rollout. So the judge then eventually dismissed the case after finding that the numbers were low, and that the DoC had done what it could to vaccinate as many individuals as it could. The federal case was dismissed prior to that, based on a bunch of, kind of, technical legal theories that we thought we could survive initially, and the judges disagreed with us, unfortunately. So that case was dismissed. And, for reasons I won't get into, we decided not to appeal it, unfortunately. Now, as of today, which is December 9, numbers at FCI Waseca are up again, and currently has the highest infection rate of any federal prison in the country. And the population is - is a little over 700. And the infection rate right now, I will pull it up, one moment. The number of individuals infected right now who are incarcerated is 132.

And that has basically doubled in the past, I would say, week or so. So it's very frustrating that many of these suits around the country were dismissed or requests for relief are denied based on legal technicalities that reasonable lawyers would disagree about. And now we're seeing, again, high rates of infection, as variants have changed. And, as, it's my understanding that, at FCI Waseca anyway, the rollout for the booster shot has been very slow. In fact, the last I heard, the women incarcerated there had not been offered boosters, and this was about two weeks ago. And obviously boosters have been available to at-risk people for much longer than that. And to everyone for a little longer than that. It is difficult as an advocate who has tried to work on these cases to get timely information Because when there are spikes of COVID infections, the prisons lock down. And that basically means they lock everyone up for sometimes 23 hours and 45 minutes, which does not provide the incarcerated people enough time to set up a legal call to call me or to get a letter out to tell me what's going on. And so that has been a really big challenge in litigating these COVID cases. For example, in FCI Waseca, we knew kind of what was going on because of the publicly available data. In September, we saw this just like huge spike in infections. And, but we didn't file our suit until December, because we had to get affidavits from all of the- from the 14 women. You know, we had to interview them, we had to send them engagement letters, we had to start that whole process and they, they weren't available. I couldn't just drive to Waseca, Minnesota and meet with them. Visits were prohibited. So that has been a really frustrating piece because this crisis moves so fast, and the courts are always slow. It's a slow, deliberative process, typically, filing a lawsuit. So even if we are seeking a temporary restraining order, which is emergency relief, which we did in the Waseca case, it's just really difficult for us to be able to provide some sort of emergency relief for our clients.

EO 10:14

Yeah. I guess on that topic, how were you primarily communicating with your clients? Was it over the phone or did either the state or the federal prison set up like video conferencing?

CD 10:26

There was no video conferencing offered, there was no visiting conferencing allowed. So for the individuals in our state cases, in our state court cases who were in state facilities, I would try to set up legal calls with their counselors. So that was also not an immediate process. So I would reach out to a counselor via email, with dates and times, they would get back to me. Some counselors were more responsive than others, some I wouldn't hear from for weeks. You know, others were pretty good about it. And by the time the lawsuit got rolling, they all knew what we were doing. They all knew that if they didn't respond relatively quickly, they were going to hear about it from their lawyers because we complained, but it was a long process. And many times, I'd have legal calls set up with our clients in the state cases that were then canceled because they were on lockdown. I would also have counselors say, you know, “We can do our best to schedule during this time, but there could be a lockdown.” With the women in the federal case who are incarcerated, we do the same process with the legal calls. So just over the phone, you know, those calls are limited, though not monitored, thankfully. Those are limited typically to 30 minutes, though some of the counselors would permit 60. And then sometimes via email, too. So, the email was all monitored, unfortunately, so while that was a faster way for clients to communicate, that was not a way that we were comfortable really having them put a lot of things in writing. So it was a very slow process.

EO 12:14

Yeah, it seems like painfully slow.

CD 12:16

It was and especially when we had, you know, some of the affidavits that we filed, particularly in the federal case, were extremely long. And so, in addition to going over what we could over the phone, we would send, we would send the draft affidavits to the women as well. So mail was also a way that we would communicate, which is also incredibly slow, because even legal mail is screened. Hopefully not read, but it is screened. So that process just takes a while and then getting mail out of the facility also takes a while because it's similarly screened. So it is, it is something that, being an advocate for incarcerated people, you have to deal with all the time COVID or not, but COVID really slowed down the process and complicated things. Yeah.

EO 13:07

It seems like both, like meeting with incarcerated people, and the court process is like slow. And obviously, that's not a good thing most of the time, but COVID just really like exposed, how slow it was and how much of an impact that would have.

CD 13:23

Yes, it was. Yeah, and I don't, another kind of challenge at the federal level is pretty, [blows nose] runny nose sorry, and not COVID. ((both laugh))

Another big impediment was a law called the Prison Litigation Reform Act. So that law basically, it says a lot of things. But it requires individuals basically to exhaust administrative grievances before filing suit against the Bureau of Protection. So that, what that means is that the Federal Bureau of Prisons, and I keep saying Federal Bureau of Prisons just to establish that it's a federal entity. So the BoP has a grievance process. So first, you write a little complaint to your counselor and your counselor reviews it, and has typically, I think it's like something like 21 days to review it, maybe it's 14, gets back to you, say the request is denied. Well, you can then file the same grievance with the person at the next level. And they have a certain amount of time, it comes back, it's denied. Next level, deny. Next level, denied. I don't even recall how many full levels there are, maybe five. The whole process takes about 90 days. And so it was not possible for people to grieve their COVID concerns. And I'll give you just a really concrete example. We had a client in a federal case who started the grievance process before she got COVID. Because she had multiple serious medical issues that really put her at risk of severe illness or death for COVID-19, she saw what was coming, she started filing grievances about lack of the lack of COVID precautions she was seeing in the prison. She started filing, filing the grievances. She was appealing the grievance, she was doing everything she's supposed to do, when she got COVID. She got really sick, she was on lockdown. You know, she was basically unable to do anything for weeks, because she just simply didn't have access at many times to the documents. When she was out of quarantine, where she was literally just like put in a cell locked away, it was actually, many of the quarantine cells that the prisons are using are the solitary confinement cells, so where you would go for punishment. So you know, then she gets out, and she continues to grieve it. But at this point, she's already been sick. She's already had COVID. She's now at risk of Long Haul COVID. And so it just, that law is meant to restrict the frivolous, restrict frivolous litigation. But it really, it really prevents people from asserting their eighth amendment rights when they're really at risk. And there are some circuits and there is some case law that seems to recognize that there are emergency situations where strict compliance shouldn't comply. But generally, courts found that COVID did not fit those certain exceptions, which I think was a surprise to a lot of advocates who thought, if there's going to be a situation where the PLRA requirements would not have to be followed, you would think COVID would be one of them. But surprisingly, to me, anyway, this can be like a general matter. Definitely not every single court that looked at this, but as a general manner, courts found that compliance with the PLRA would still be required, which doomed a lot of the lawsuits dealing with these issues.

EO 17:41

Well, I yeah, I was, when you were talking about the, I've never heard of that, the prison litigation reform, I was like, oh, there's gonna be an exception for emergencies. And what is more of an emergency than, like a pandemic?

CD 17:55

Right. And there's, you know, courts have, so the different circuit courts, the law is gonna differ so, I'm speaking very, very generally. But yeah, it was really a shame that the PLRA was such an obstacle for people.

EO 18:18

Yeah.

CD 18:19

And will remain and will likely, from what we see, remain an obstacle

EO 18:23

Yeah, now that we're going to keep having these spikes of COVID. Where –

CD 18:26

Yeah.

EO 18:27

– things don't seem all that, I don't know. Especially in the prison setting where everyone's very close together.

CD 18:34

Right. Right.

EO 18:35

Kind of along that line, in those three lawsuits, and then just also in general, what kind of policies are you all advocating for? Is it, so you said, like access to vaccines and boosters? Is it masks? Is it like staff testing? Like, what does that look like?

CD 18:52

Yeah, yeah. So the CDC had very specific guidelines for prisons and jails actually. So that kind of, that guidance, really, was what we were advocating for, you know, just wanting to make sure that what the CDC is recommending is actually being implemented. But the big piece, of course, that the CDC recommends to everyone is social distancing. And experts, you know, infectious disease experts across the board agree that social distancing is the most effective way to prevent COVID-19 spread. And, of course, with prisons, it's basically impossible and the prisons recognize, I mean, the prisons recognize, we recognize that, but for many of the advocates, it's not enough to say, “Oh, we can't, we just can't do the one thing that's actually going to most effectively prevent the spread of COVID-19.”

So the ACLU Minnesota as well as many other advocates around the country in these cases were advocating for these institutions to decrease the prison population. And there were different mechanisms by which the prisons could do that. So for example, in Minnesota, there was something called conditional medical release that's always available to the person. If someone is basically dying, you know, the prison has the authority to release that individual on conditional medical release. So in Minnesota, the prison started that process and was accepting applications for people with underlying conditions. Unfortunately, the approval rate for conditional medical release was extremely small, very, very low. And the reasons, the most common reason we saw for the denials was just, “We can't confirm that you are not a threat to public safety,” which is problematic for many reasons. First, it puts an odd, it seems ( ) burden on the person, “We cannot confirm, you're not,” you know, that that's where, instead of, “It is clear, you are a threat.” That's kind of the first issue. Second issue, it didn't appear to be individualized, it appeared to be kind of blanket language that they apply very broadly to people across different offense levels, across different sentencing lengths. It didn't really, it didn't seem individualized enough. And third, the issue of whether or not you're not a threat to public safety, actually, has no bearing on your risk of severe illness or death if you contract COVID-19. And so, so we found that problem, we found that the Department of Corrections did not take enough advantage of that capability that they had to decrease the prison population in a way that would allow for social distancing. Now, they would say, “We use this more than we ever had before.” And you know, so that's their argument. And “we have an obligation to keep people locked up,” and “we can’t just let everybody out.” But that was our take. At the federal level, there were also some mechanisms in place, and we kind of saw the same thing. And I won't go through all the different mechanisms, because they're, they're very well known, but it's compassionate release, The first one, we go through the courts and the second one, Attorney General William Barr set up after the legislature passed, the Cares Act, that allowed prisons to review individual people for release, basically, and it would be home confinement, essentially, so not completely released, but home confinement. And we saw kind of the same issues. It was our opinion that the prison in Waseca was not doing enough to release people under the Cares Act, particularly when many of our clients had extremely serious conditions. If these people aren't going to be released, who are you releasing? So we also thought that that was too restrictively used. And there was additionally that public safety issue presented, and it wasn't clear how those determinations are being made.

EO 23:36

Wow. Wow. And it also, I mean, when you said public safety, I'm like, public safety includes like health and –

CD 23:43

Yes, yeah.

EO 23:44

And they're around a bunch of other really sick people. And it's like, (unintelligible)?

CD 23:47

Yes, yes, and kind of two follow up points to that, you know, when there are these big outbreaks in the prison, you see outbreaks in the community, because there are people, and vice versa, you see outbreaks in the community. Like Minnesota right now, for the past few weeks, has had among the highest infection rates of any state. And so it's not a surprise that one of our prisons has 132 people infected while the next highest prison has 28. So it is a public safety issue, too. We want to keep the number of infections, the COVID infections in incarcerated populations low because that will affect the public health of the people on the outside. And second, I was gonna say, and the second point with the public safety issue that was really difficult is at the federal level. And I'm sure this was the case at the state level, we just didn't know, one of the things that they would look at, are these kind of like different, essentially, like disciplinary levels that people are at. So are you high security, low security, medium security, you know, that kind of thing. So everyone at FCI Waseca, FSI Waseca is a low security prison. But even in the, at that facility, there are kind of these different levels. But incarcerated people have the ability to work for lower levels based on programming. (Interviewee laughs) The irony here is that all the programming was closed and unavailable.

EO 25:21

Yeah.

CD 25:22

So people, even if they had very severe conditions and wanted to get to these kind of lower levels, couldn't. There was literally no way to do it. And the Attorney General has said that it doesn't need to be, that the prison has discretion, but from what we saw at Waseca, it was very, the release decisions seemed very tied to those different security levels. And what was interesting is that, after our case was dismissed, so, we had been advocating for the release of our 14 clients, specifically. The BoP was saying “No, no, no, no.” It wasn't agreeing to that, trying to get the case dismissed. Basically, similar issues I talked about before. But in the months after the case was dismissed, many of our clients were released, which begs the question, well begs many questions, you know, but it was good news, obviously, for those clients. And we were thrilled. But it was also frustrating, because if they hadn't been a security risk, or if they, you know, had been found to be eligible for this release a few months later, why not release them before? Why not release them before? So, it, basically, we saw that, while there were these mechanisms in place to allow these institutions to release people to encourage social distancing, in institutions with people who are still there, the prisons just weren't doing that.

EO 27:04

Well, I mean, I'm glad they eventually got released. But –

CD 27:09

Yeah.

EO 27:10

– at a certain point, why couldn't (that have happened) before they got sick or before it got really bad?

CD 27:14

Yeah, it just kind of speaks to the lack of transparency with the release, kind of with the release process.

EO 27:23

Yeah. In California, we have, not to get on too much of a tangent, but there's like, all these, it's so, it seems so case by case, and it's so impossible to predict.

CD 27:34

Yes.

EO 27:35

We had, I forget what the bill number exactly it was called, but it allows you to like kind of appeal for resentencing based on health effects. And in COVID, that was a big thing. And it was like, two very similar cases could get totally different responses or answers. And it was just…

CD 27:50

Yes. And that was an issue with the compassionate release, which is the second mechanism where people are going through the courts at the federal level. It depends, like any criminal case, it depends on the prosecutor. And it depends on the judge –

EO 28:07

Yeah.

CD 28:08

– at the end of the day, because there is so much discretion there.

EO 28:11

Yeah. Um, on the topic of like prosecutors and discretion and all that, among, and totally don't answer this if it makes you uncomfortable, but among like prison administrators, prosecutors, I don't know if you interact with any, like prison staff unions or anything like that, did any of their behavior like surprise you in a negative way or surprise you in a positive way throughout all of this?

CD 28:41

I think in civil rights litigation, you always, again, as an advocate, you are trying to get the government to do what you think is the right thing. And so it is generally a surprise, when the government pushes back and says, “We're not going to do this,” because, as an advocate, it's, it seems clear that there are things you have to do to comply with people's constitutional rights and make sure those constitutional rights are not violated. So it's kind of always, it's always a surprise, when we are filing cases where we aren't seeking 10s of millions of dollars, you know, when we are just saying, “You need to comply with the CDC guidelines.” And the answer from the government is typically, “We're already doing what you're asking,” which always, you know, always begs the question to me, like, “Great, let's write it up.” Like, let's write it up, let's have an independent monitor go in and ensure that that's true. And so I think generally it's in every case, that's kind of my feeling. And at this point, I'm used to it. So it didn't necessarily surprise me. I wasn't particularly frustrated, but it is difficult. It, you know, this was a really difficult situation emotionally because, of course, the prosecutor’s working from home, I'm working from home, I sign off my computer and I get to go hang out with my kid and my husband. And these women are locked up in cages, terrified for their lives. And so, it had this kind of like additional, which is always the case when you're dealing with incarcerated people. But I was, I was scared of COVID, so I was working from home. Prosecutor’s scared of COVID, so she is working from home. And we could make that choice. And we didn't have to be stuck in a room with 20 other people in a bunch of bunk beds. Like I just, how terrifying that would be. I think it was easy, it was easy to put myself in my client's shoes here where like, that's not always the case. Because I don't have any idea what it's like to be in prison. I don't know, but their fears with COVID. It's like, “Oh, I get what you're scared of,” because we're all scared, because this is gonna affect, this is affecting all of us.

EO 31:09

Yeah.

CD 31:10

So in that sense, it was kind of maybe like a heightened feeling of just what we typically do. Which is, why won't you just agree? You say you're doing this. Why won't you just agree on paper, and agree to an independent monitor to verify all this? And typically, I mean, I've never had a government say, “Okay, we'll do that,” you know, but here, especially because everyone understood how scary COVID was, you know, it was just kind of an additional frustration.

EO 31:43

Yeah. And were you surprised, like, positively by anyone? Or did everyone…?

CD 31:50

No. ((both laugh)) I was, I mean, it was nice that I, that, and I, this was not the case with every advocate, because I'm on a lot of COVID litigation listservs, and so this was not the case. But I, for the most part, found counselors who were very willing to set up calls. And if a call couldn't be completed on a certain day, because of lockdown, they would reschedule promptly. Like, I really, by the end of it, I wouldn't say I have a great relationship with counselors, we didn't have a relationship, but it was a nice professional communication where it didn't have to be, you know, they could have been, they could have made it really difficult for me. And maybe that's a credit to their lawyers, you know, to the prosecutors who said, you have to make sure that like I don't know if that conversation was had. But I didn't have any issues with that. And they even, I won't mention which case it was, but I even had a counselor who would agree to fax me signature pages of affidavits. Which was, I mean, I didn't know if that was permitted or not, or allowed or not. I just asked and this person agreed. And then after a while, the person said, basically, I got caught, I can't do this anymore. And I don't I don't think this person actually thought they're violating a rule.

EO 33:10

Yeah. They were just all-

CD 33:11

It had just come to, which then disappointed me that the prosecutor had like, told on this person, right, because the prosecutor would have seen how we got the affidavit and would have done something about it to stop, to stop, again, to delay our ability to file these affidavits in a timely manner. So I would say that the counselors, by and large at all these facilities were, were really, seemed happy to help facilitate communication. I think partly that's because they were scared too.

EO 33:46

Yeah.

CD 33:37

And because of, because of, I'll just say kind of generally, the prison unions at the federal level anyway, had been pretty vocal about how they were concerned. And they filed a complaint with OSHA, saying the prisons aren't taking COVID precautions, but because of different, because they were made up of prison employees who were then represented by the government, we couldn't necessarily seek them out. But it wasn't just the people who are locked up inside who were scared. You know, according to the Union complaints, it was also the staff. And I did hear stories from clients and staff who really did try to help individuals who were sick or you know, there, there were staff there and as in every case, you know, you hear about some staff who, you know, explicitly said, like, “I'll be a witness for you the way that you didn't get medical care was not okay,” you know, so there are also staff who, on the other side. But, but that's always nice to hear that, inside, that there are people who, who do really care about our clients.

EO 35:08

Yeah. It seems like with the pandemic, obviously, everyone experienced it so differently. And like, what you were saying, like you're working from home and like, so we, like, that fear was still similar. And like, one might think that that would encourage, like, even more compassion, because you're like, oh, there's like, I feel like there's such a divide between –

CD 35:27

Totally.

EO 35:28

… non-incarcerated and people that are incarcerated. Yeah. And like getting scared of being sick is getting scared of being sick.

CD 35:36

Yes.

EO 35:37

I wonder if, I guess, when you're talking about like, the staff and the counselors, because they both work at the prisons?

CD 35:43

Yeah.

EO 35:44

And like, whereas the other, like the other lawyers work from home. And so maybe that, like divide of not being there was the difference between like, being a little bit more compassionate in these situations?

CD 35:54

Perhaps. Yep. Perhaps.

EO 35:59

That's so frustrating. Um, is there anything, any part of your work that you think like, worked better in the pandemic that you're going to like, kind of keep, like, moving forward? I can’t think of any examples off the top my head.

CD 36:15

Yeah, like separate kind of from the subject of litigation, just like generally?

EO 36:20

Generally, like, I've like, something that I've found is like, I'm much more likely to reach out to someone that lives in like a different state, because it's like, not weird to have a Zoom meeting.

CD 36:28

Oh. Sure.

EO 36:29

Where it's like –

CD 36:31

Yeah.

EO 36:32

But that's like as a student, and so maybe, like, with you like communicating with counselors or something like that?

CD 36:37

Yeah, I don't know. Because with the incarcerated clients, it was kind of like a remote work situation anyway.

EO 34:46

Yeah.

CD 34:47

I mean, I did end up going down to Waseca to visit after the case had been closed to address some other legal issues that some of the clients were having, once it opened up. So I think that, not specific to representing incarcerated folks. Because they're always difficult to, to get a hold of, and meeting with them in person is always, is always something that just requires a lot of work on the front end, like I can't just show up at the prison. I can't be like, oh, I want to go talk to Joe Smith at this prison and, you know, show up, I have to fill out paperwork, I have to get permission, I have to, you know, send in my passport, my driver's license or, you know, it’s like a big procedure. So, with COVID, I don't necessarily think so. And in fact, it will be easier to represent incarcerated people when we're not in a pandemic, if we’re ever not in the pandemic, because I will be able to set up those meetings, so just get stuff signed over there on paperwork, you know, they had to mail us every grievance, they had to, you know, it was a lot of yeah, like I said it was very slow.

EO 38:09

Hmm. And then, as an advocate, like, how do you think COVID has changed, like, have you changed as an advocate at all? Or has your relationship with your clients changed at all?

CD 38:23

I will say I think it's important for people to know, if we’re like, looking at this five years, 10 years, whatever, how emotional it was to, to represent. (cries, voice breaks) To represent people during this time, I was a public defender before this. And in the public defense world, we talk about secondary trauma a lot. Because the cases we see are traumatic, our clients are victims of trauma. We so, we talk about it all the time, but I have not experienced, I've never been as, just like emotionally upset and drained from the few, from like six months that I was working on the federal case. It was just, because the stories were so horrible. I mean, really, just really unbelievable. The way that people were treated and like just hearing stories of the women who are incarcerated, and in knowing that fear of even like, you know, going to the grocery store, you know, the fear that I had and then and then what happened to them when they did get sick was just, was just really a lot to process, it was just. And that feeling like you couldn't do anything to really help them in the short term because of the delays.

(Interviewee was struggling to get the words out through tears)

And I was, you know, we were working around the clock to try to get the last ( ), we still couldn't file until December, you know, it just, it still took two months to get everything together. And so I think every other case that I touch now feels easier, feels easier, just feels, I mean, not lighter, because some of what I work with is depressing. But, but that was really hard. And definitely not something that I thought, necessarily, you know, but like, I think it was just, I personally was stressed about COVID, I had a baby during COVID, it was, you know, it's just, it's just all very stressful. And then on top of it, to, to hear the stories of what people were going through, and people who don't live far away from me, you know, people who otherwise would be out in my community. So that was really hard. And obviously, like, a year later, I'm still touched by it. And I still… Yeah, yeah, still keep up with as many clients as I can.

EO 41:22

Yeah. Has it made you, like, closer to your clients? Or do you feel like you have to not be as close to your clients? Because of this like, just inhumane, like system? I don't know.

CD 41:37

Yeah.

EO 41:38

Like have you been, like, into it, or have you been like, I can't do this.

CD 41:41

I think it's actually been hard not to see people. Like, you know, that like has, that maybe created some almost distance, I mean, I worked really hard for them wanting to but at the end of the day, like they haven't been able to really sit down and talk to us which, as an advocate with clients who are incarcerated or clients who are incarcerated, outside COVID. So it definitely has made me more like, protective of these clients, because I just, because of what they've just gone through is so horrible, and they weren't, all we were able to do is give them a voice, we weren't actually able to provide any relief. And I'm sure in some way, you know, many, many incarcerated people will say this, and then even people after losing a criminal trial will say this, like they just, seeing someone fight for them is, is something in and of itself. But here, it didn't feel like enough.

EO 42:52

Yeah.

CD 42:53

I didn't feel like, because they were really suffering and still are. I mean, one of the clients in particular, that I had is still suffering severe long term, long haul COVID effects I mean, severe, this person basically can't speak anymore, who doesn't have a voice. It's really horrible. So I don't know if it made me feel closer, necessarily, but I definitely, it just made an impact. So I really care about, I care about all my clients ((laughs)), but you know, those clients, I still encourage to reach out to me and I try to keep up with them. Yeah.

EO 43:33

That's, that makes sense. And then I don't want to, I know we're getting close to like that hour mark. Um, do you have any, obviously you're very much still in it and so asking you to look at it in hindsight seems kind of cruel, but any like lessons for, because the whole point of this project is to like, kind of create this like, a resource for people moving forward if there is ( ) pandemic, or if this pandemic ever ends, like for people that are like similarly situated to you, any lessons, any things you wish you knew in February or March of 2020?

CD 44:11

I think that, just kind of general advice but, even if you think, if you think that the law is really good, don't be surprised if the judge disagrees. (laughs) If you think the law is really bad, try the case anyway. Right. Yeah, and I don't want to get into too much about our thoughts on, I don't want to get too much actually about the hindsight thing, but I do think that for people going forward. Don't wait. Like, if there's a pandemic or something like, don't wait, because there were suits, like our suit in April was not successful because it was in the beginning. But other suits were, there were other judges around the country who recognized that this is going to be catastrophic. And weren’t going to wait for people, incarcerated people, to start dying before doing something. So I think acting as quickly as you can, is important, especially given the delays that you're going to have. So that would be, I think, yeah, my piece of advice, just like act as quickly as you can, and do the research and make sure your case ( ), of course, and all of that, but also like, I think at the end of the day, with a lot of case law, like I said, reasonable people can disagree on interpretations. And so you may get a judge who sees the case you do, the way you do, and, you know, does what you ask (laughs). So that's kind of general advice. But I think that the COVID stuff, also find people who are doing similar work across the country and get on a listserv, and share resources. That was a huge help. And it goes back to the issue of filing cases as soon as you can. Because you don't have to reinvent the wheel every time. There are resources that you can use. For example, there are other complaints, you can look at there, you know, there are other affidavits, you can look at from experts, you know, to try to inform what you're going to do. And that was one thing I was really amazed about, not having been a civil rights lawyer before COVID Just how quickly the community of advocates who, who are doing this work came together and would help each other. So that's the big thing.. Don't do it by yourself, because it'll slow you down.

EO 47:15

Yeah.

CD 47:16

Try and find people.

EO 47:16

Sorry, I didn't mean to cut you off.

CD 47:17

No, not at all.

EO 47:17

Do you think you'll like take that like, kind of, like, collaborative, like being in all these groups now for like, non COVID related things?

CD 47:24

Yeah. Yeah, I mean, it definitely, you know, we have, I mean, the COVID listserv is still going strong. Because COVID is still with us. But yeah, you know, I think they're, I mean, especially at the ACLU, you know, we already have kind of a built in network, to deal with a lot of different issues as they pop up. But having such a specific group, which we could do, because there were so many people bringing these cases, was really helpful.

EO 48:01

Great. Um, that was my last question. Is there anything that I didn't ask about that you feel is important?

CD 48:09

No, I mean, the one thing I wanted to kind of get across was, like, just how hard this was. And so for, like, people doing it in the future, I mean, God forbid, we have another pandemic or something, well, you know, that it's like, like, lean into that, like, know, it's gonna be hard. But just keep going and rely on, rely on the kindness of others who are doing the same thing to help you and share and get experts lined up as quickly as you can, because they get really busy really fast. So that is a very practical piece of advice. But at the end of the day, you were seeing a lot of the same experts in these cases, because they were the best, right? Like, they were the top of their field on this issue. So everyone wanted to get them. But then that also means if you weren't one of the first in you are told, “I’m sorry, I can't help you.” And only so many people are going to be willing to serve as an expert for free in situations like this, especially when they're infectious disease specialists. And this is the busiest they've ever been in their careers. So yeah, so that was another, that's another very practical piece of advice is: get experts really early.

EO 49:27

Were courts willing to, like, do virtual stuff? So have those experts like zoom in instead like –

CD 49:34

Oh, yeah.

EO 49:35

Okay, that's good.

CD 49:35

Yeah. So different courts have different protocols. But, so I can't speak to every, maybe in some places, they were requiring in-person hearings. But in the cases that I was dealing with, it was all remote, which is another benefit I guess when you're talking about litigating, you know, in non COVID times, I guess that's one thing. Like being able to rely on experts out of state. Courts now may be more willing to Zoom them in, rather than have, like, as a nonprofit, have the nonprofit pay for the expert to fly in for the day and, and the expense that comes with all that. Haven't had that situation yet, because most courts are still basically doing remote work for civil cases. But that could be one benefit that comes out of this, that makes it easier because experts are always, can be difficult I should say, not always, can be difficult to obtain. And if they're not able to do the case pro bono which some aren’t, which totally makes sense, it's free labor, you know, I get it. But then coming up with the funds can be difficult too. So anything that makes that process easier, or less expensive, is going to be better for our clients.

EO 50:59

And asking people to travel now is so crazy, because, COVID.

CD 51:01

Right. Right, yeah, so the courts, the courts, I have been practicing in have been really good about that for civil cases.

EO 51:12

Okay Great. Well, thank you so much for talking to me.

CD 51:15

Thank you, thank you for um, you know, donating your time to do this important project. I, I relied on your website a lot during this process. So one of the reasons I was so happy to talk to you and talk to the, you know, help out with the project because I really did. You guys were one of I mean, the main resources when all of this was going down, it was really up to date, it was really good data. So thank you, because it's not easy to do that while you're also dealing with COVID at law school that you have to do remote and as a second year that's hard. So thank you.

EO 51:51

It’s a really great project and like I said, I don't handle the [unintelligible]. There's like 1000 different teams within the –

CD 52:00

Of course.

EO 52:01

So I think that the transcript will be sent to you. I feel like it might be pretty backlogged so it might take a few weeks and then you could read through it.

CD 52:09

No problem.

EO 52:10

And let us know if you want anything cut.

CD 52:13

Okay, great. Well really appreciate your time and sorry that it took us so long.

EO 52:19

Oh, no, and again, I'm sorry for missing that that first–

CD 52:20

No, don't worry about it, being that I was messed up with it today and I appreciate you ( ) here. Certainly that helps me out.

EO 52:26

Okay, I'm going to stay on because I have to like, end the recording somehow and I'm going to try to get out. So you can just leave whenever you want. But thank you so much again.

CD 52:38

Okay. Thank you. Good luck with finals.