Following are: (a) some noteworthy questions that two Republican senators asked Deborah Boardman, in writing, during her Senate confirmation process in May 2021; and (b) Ms. Boardman’s written responses to those questions.
1.
Senator Chuck Grassley: In Gallagher, the defendant was a drug dealer with a gun who had shown himself to be a flight risk. The district court found all relevant factors counseled continued detention. Why did you think letting this individual back into the public was a good idea?
Deborah Boardman: In United States v. Gallagher, the government moved for the defendant’s pretrial detention. During an April 2020 hearing on the motion, I considered the factual proffer and arguments of counsel and the factors in the Bail Reform Act to determine “whether there [were] conditions of release that [would] reasonably assure the appearance of the person as required and the safety of any other person and the community.” At the hearing, the defendant proposed release to his girlfriend’s custody at her apartment near the location of the alleged offenses. No detainee or staff member at the facility where Mr. Gallagher was detained had tested positive for COVID-19. Further, electronic home monitoring was not an available release condition. Applying the Bail Reform Act factors, I found that no condition or combination of conditions reasonably assured me of the safety of the community and the defendant’s appearance at trial. I, therefore, ordered Mr. Gallagher’s detention.
In May 2020, Mr. Gallagher moved to reopen the detention hearing because correctional officers and a detainee at the facility where he was detained had tested positive for COVID-19. I reopened the detention hearing pursuant to 18 U.S.C. § 3142(f)(2). At the second detention hearing, I again considered the factual proffers and arguments from counsel and applied the Bail Reform Act factors. I also considered the possibility that COVID-19, which was then inside the facility, would spread rapidly among the detainees and staff, as it had weeks earlier at another local pretrial detention facility. At the second detention hearing, the defendant offered a more suitable release plan than he had at his first detention hearing, and electronic home monitoring was now an available release condition. He proposed release to the third-party custody of his mother and grandmother, who lived together in a single-family home in rural Delaware, over 100 miles from where the alleged offenses occurred. I spoke at length with his grandmother and mother during the hearing. His grandmother was retired, and his mother worked from home. Neither had a criminal history, and Pretrial Services approved them as third-party custodians. Both women assured me that they would watch over Mr. Gallagher and transport him to court proceedings, meetings with counsel, and a Bureau of Prisons facility for surrender to serve any imposed sentence. They also assured me there was room in the home for him to quarantine safely upon his release from jail. There were no allegations that Mr. Gallagher acted violently or used a firearm. Mr. Gallagher previously was released by a state court judge on related state charges, subject to electronic home monitoring. After the state court charges were dismissed in favor of federal prosecution, Mr. Gallagher removed his ankle bracelet and did not report to face the federal charges. He remained in communication with his attorney and the law enforcement officer on the case, and he eventually voluntarily appeared in Court for an initial appearance on the indictment.
Applying the Bail Reform Act factors in Mr. Gallagher’s case, I found release conditions that “reasonably assure[d] the appearance of the [defendant] as required and the safety of any other person and the community.” 18 U.S.C. § 3142(f). The Bail Reform Act requires the Court to find “the least restrictive” conditions that will reasonably assure the defendant’s appearance as required and the community’s safety. 18 U.S.C. § 3142(c)(1)(B). I released Mr. Gallagher on the strictest possible conditions. Specifically, I released him to the third-party custody of his mother and grandmother, subject to home detention and electronic monitoring. He would have been allowed to leave the home only with advance permission of his Pretrial Services Officer.
2.
Senator Chuck Grassley: In Spencer, the defendant led a drug ring that “distributed and sold significant and daily amounts of heroin, fentanyl, and cocaine base. Members of the organization employed juveniles and used firearms to further the business empire…To make matters worse, the Defendant was on probation for a narcotics distribution offense at the time of his arrest in the present case.” Why did you think letting this individual back into the public was a good idea?
Deborah Boardman: In United States v. Spencer, the government moved for the defendant’s pretrial detention. During a hearing on the motion, I considered the factual proffers and arguments of counsel and the factors in the Bail Reform Act to determine “whether there [were] conditions of release that [would] reasonably assure the appearance of the person as required and the safety of any other person and the community.” I also considered that the pretrial detention facility where Mr. Spencer was detained was in the midst of an uncontrolled outbreak of COVID-19. Two weeks earlier, a United States District Judge for the District of Columbia found a likelihood that the District of Columbia Department of Corrections, which oversaw the facility where Mr. Spencer was detained, was deliberately indifferent to the risks that COVID-19 poses to the health of detainees. Judge Kollar Kotelly reasoned that the plaintiffs in Banks, who, like Mr. Spencer, were pretrial detainees, “provided evidence that Defendants are aware of the risk that COVID-19 pose[d] to Plaintiffs’ health and ha[d] disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus.” I also considered the fact that there were no allegations that Mr. Spencer acted violently or that he possessed or used a firearm.
Applying the Bail Reform Act factors, I found conditions of release that reasonably assured me of the safety of the community and the defendant’s appearance at trial. I found that he could be released to the third-party custody of his older sister, who had no criminal history and was home all day during the pandemic with her three young children. She owned her home and lived several miles from the neighborhood where Mr. Spencer allegedly sold narcotics. Pretrial Services vetted her and deemed her a suitable third-party custodian. As a condition of release, I required home confinement subject to location monitoring by Pretrial Services. Mr. Spencer would have been allowed to leave the home only with advance permission of his Pretrial Services Officer.
3.
Senator Chuck Grassley: There was also some confusion about a question I asked about which clients “deserve” civil representation. You may be aware of groups of law students targeting law firms over their representation of oil and gas companies…. Do you think oil and gas companies deserve legal representation?
Deborah Boardman: Until receiving your question, I was unaware that groups of law students targeted firms that represented oil and gas companies. It would be inappropriate for me, as a Magistrate Judge, to comment on whether any company deserves legal representation.
4.
Senator Chuck Grassley: Do you think it’s good for the legal profession when activists pressure law firms about which civil clients (like oil and gas companies) “deserve” representation?
Deborah Boardman: It would be inappropriate for me, as a Magistrate Judge, to comment on whether the legal profession benefits from activists pressuring law firms about which civil clients they represent. My role as a judge is to interpret and apply the law to the specific facts of the case pending before me. My personal views and opinions are irrelevant to my judicial decisions.
5.
Senator Chuck Grassley: Do you agree that it’s in the best interests of society for defendants to cooperate voluntarily with law enforcement?
Deborah Boardman: Voluntary cooperation with law enforcement can benefit society. Whether to cooperate with law enforcement is a fact-specific, individualized decision that varies from case to case and person to person. The decision to cooperate with law enforcement always belongs to the defendant.
6.
Senator Josh Hawley: Do you believe in upholding the sanctity and dignity of human life, especially as regards to the unborn, the elderly, the handicapped and all others?
Deborah Boardman: It would be inappropriate for me, as a Magistrate Judge and District Judge nominee, to discuss my personal views on “upholding the sanctity and dignity of human life, especially as regards to the unborn, the elderly, the handicapped and all others.” My personal views are irrelevant to my judicial decisions. As a Magistrate Judge, I uphold the laws and Constitution of the United States, and I impartially apply the law— including Supreme Court and Fourth Circuit precedent—to the specific facts of the case before me. If I am confirmed as a District Judge, I will do the same.