Seven months ago, Raleigh immigration attorney Beckie Moriello was looking at her cell phone during an asylum hearing in Charlotte. And for that, she’s now looking at the possibility of fines—or even jail time.
Moriello is being prosecuted for failing to comply with a judge’s orders to stop using her phone and for disrupting the performance of government employees’ official duties. On Thursday, a judge is expected to hear a motion filed by her attorney seeking to dismiss the case.
Moriello doesn’t deny that she used her cell phone in the back row of Judge Barry Pettinato’s court while observing an asylum hearing on June 29. But she does argue that a directive from the Executive Office of Immigration Review allows attorneys to use cell phones in court for business purposes and that they do so frequently—making the regulations she is accused of violating vague and arbitrary.
The attorney says a security guard approached her during the hearing and asked her to stop using her cell phone. The first time, she responded that she was using the phone for work. The second time, Moriello refused her demand again, skeptical that Pettinato would ask the guard to deliver the order rather than make it himself. The third time, the guard returned with a Charlotte cop, and she was escorted to an office elsewhere in the building.
Since then, Moriello has been in court twice and must check in with officials regularly, including for permission to travel out of state. Both sides say the case has gone too far.
“There’s no doubt that this is a waste of resources,” Moriello says. “This is my tax money that is paying for them to prosecute me for sitting silently in the back of the court staring at my lap.”
She feels singled out. Pettinato has chided her before, she says, for “bringing weak cases and wasting the court’s time.” While the directive allowing attorneys to use their phones in court for work gives the judge discretion to order otherwise, Moriello says it’s “really allowing the judge to cherry-pick who he’s going to stop.”
But the government says the case is clear-cut. Moriello not only disregarded signs prohibiting the use of electronic devices and subsequent orders by a judge but also “created a disturbance,” according to court documents. Moriello’s attorney is seeking audio of the hearing (and the alleged disturbance), but the U.S. attorney on the case says it’s confidential.
“This case could not be simpler, yet Defendant has made much of it,” wrote assistant U.S. attorneys Corey Ellis and Daniel Bradley in response to a motion to dismiss the case as unconstitutionally vague and a violation of the Constitution’s Separation of Powers clause. “… It is past time for this petty offense case to proceed to trial.” (The Executive Office of Immigration Review declined to comment on pending litigation.)
Each charge carries a penalty of fines, up to thirty days’ imprisonment, or both. Moriello may also face repercussions from the North Carolina State Bar. The association’s Rules of Professional Conduct broadly say lawyers can be subject to discipline if they commit a crime “that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects” or engage conduct to the same effect.
“I’m not going to lose my license over this, but they could reprimand me,” Moriello says.
Beckie is not the one who has “made much of it” (to quote the AUSAs). The decision whether to dismiss this case or proceed to trial rested with the US Attorney’s office, and it’s ridiculous that they’re using their resources on this case. As other attorneys have already written here, it’s common practice for attorneys to silently use their phones for work purposes while waiting to be called in the courtroom.
Government attorneys are given wi-fi, but private attorneys like Beckie are not. Given the sometimes hideous delays in immigration court (case in point: Oct. 31 when thousands of respondents showed up to fake hearing dates sent out by the government) it only makes sense to allow attorneys to sit quietly and check e-mail. How is this a disturbance at all? Plus, it’s in the rules that attorneys are allowed to use their phones for work (to say nothing of ICE attorneys who use their laptops and government wi-fi to shop for sports equipment)
01/31/18 03:48pm
The rules explicitly allow attorneys to use their phones in immigration court. We use them to check calendars, make docketing entries, and verify client contact information. You should want your attorney to have access to that information in court. This is an obvious abuse of power by the court against an attorney who is simply fighting for her clients and doing her job.
Since she’s an immigration attorney, I guess she thinks she can go against the rules, as well. Fine her.
This prosecution of an attorney for permissible court conduct appears to be ridiculous use of government resources and punitive in nature. As a fellow immigration attorney, I can attest that we need access to our phones in immigration court and deserve access akin to government counsel (which we do not get, mind you). Phones are necessary as they provide access to schedules, the law, client files, etc. Silent use of an electronic device is by no means disruptive of proceedings. Moreover, opposing counsel is allowed COMPUTER and WIFI access while in immigration court—and many of us have witnessed opposing (government) counsel using their devices for non-work purposes (ie shopping). Finally, if Ms. Moriello’s cellphone use was disruptive, audio of those proceedings—which would be the best evidence of said disruption—should be provided to her attorney. If they are indeed confidential, confidential information can be redacted. Let’s be fair and reasonable here.
02/02/18 12:32pm
IJs can’t cite for contempt, so the rentacop on the scene calls local law enforcement, because he felt disrespected? Is that it?
02/04/18 12:31pm
Government attorneys in immigration court are regularly allowed to do things that immigration defense attorneys are not (blow off deadlines, use laptops, etc.). This is ridiculous, and should have been dropped long ago. I cannot believe that the U.S. government is wasting the time of AUSAs who should be working on serious matters. Instead, they literally made this into a federal case!
01/31/18 04:37pm
Barbara – Just one example of why attorneys are actually allowed to use their phones in court. If I get to court before my client does and I want to be able to tell the judge what is going on, I need to use my phone to text my office. If I step out of the courtroom to do this and the judge calls my case, I won’t be there to ask the judge to come back to me while I sort things out. Unless you want court to run half as fast anytime there’s unusually bad traffic anywhere in North or South Carolina (because respondents are coming from all over both states to appear in Charlotte Immigration Court), attorneys need to use their phones.