NACDL - Inside NACDL: Federal CJA Panel Attorneys: Speak Now, or...

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Editor’s Note: The Criminal Justice Act (CJA) established the nation’s federal public defense system more than 50 years ago. That system includes federal defender offices or federal community defenders in most districts, as well as more than 10,000 private attorneys who handle cases by court appointment through their service on a CJA panel. Last year, NACDL released a major study on the federal public defense system titled “Federal Indigent Defense 2015: The Independence Initiative.” The Administrative Office of the United States Courts has established an Ad Hoc Committee to Review the Criminal Justice Act. That committee is conducting national hearings and will be soliciting input until June. The National Conference of CJA Panel District Representatives invited NACDL Executive Director Norman L. Reimer to address attendees at its national conference of CJA panel representatives at its March 2016 meeting in San Francisco. In his remarks, Reimer discussed the reasons it is important for panel attorneys to provide candid input to the Ad Hoc Committee. The Champion reproduces those remarks as a call to arms to CJA attorneys throughout the nation to provide input to the committee. Both the Ad Hoc Committee and the panel representative for each district will be reaching out to all CJA attorneys.

Thank you for inviting me to appear here today.

It is an honor and a privilege for me both professionally and personally. That is as much because of my role as NACDL’s executive director as it is because of the nearly three decades I spent as a practicing criminal defense attorney, the last 15 years of which included CJA panel service — felony, capital and habeas.

The Ad Hoc Committee

The primary reason I am here today is to deliver one very simple and direct message: If ever you have had a critical role to play as a true representative of your panels, it is today. For most of you, I do not believe there has ever been a moment in your careers at which you have a greater opportunity to serve the defense function and the clients for whom we exist than right now — and for the next several months. Nor has there ever been a time when the risk of inaction was greater. A window of opportunity is there, but it will close, and when it does, it is unlikely that most of us will be practicing when the next chance comes along. The consequences of failure to act will be profound and enduring.

Of course, I refer to your ability to impact the deliberations of the committee that is currently reviewing the state of the Criminal Justice Act: the Ad Hoc Committee to Review the Criminal Justice Act, chaired by Judge Kathleen Cardone. That committee will make recommendations that may very well lay the groundwork for the future of federal public defense for the next generation — or more.

Storm Clouds

Let me give this some vivid context. In so doing, I will define the scope of the challenge and explain why the opportunity is so great.

I first appeared at this conference in 2012 in Albuquerque. The theme of that conference was “Standing Together.” Conference organizers asked me to address the need for CJA panel reps to become more engaged in professional activities in order to be better able to advocate for the federal public defense program and criminal justice reform issues more broadly. It was there I learned that the prior leadership of the defender program was already aware of a brewing storm. The dark clouds were gathering.

Those leaders already foresaw the convergence of events that would place the entire program in grave danger and dramatically expose a risk to the Sixth Amendment’s right to counsel when that right is subordinated to decision-makers who lack the perspective, experience, or commitment to appreciate the need for the independence of the defense function. Some already recognized that in confronting the troubles that lay ahead, both defenders and panel attorneys would need allies and advocates to weather the challenge. But I doubt that even they could have foreseen the severity of what was to come — although what transpired should not have come as a shock.

The original creators of the modern federal defense system recognized, from the very beginning, that placement of the program under the judiciary was problematic. In the 1970 Senate Committee Report that accompanied the legislation amending the original Criminal Justice Act to authorize federal defenders and federal community defenders to complement the panel, the important of independence was well recognized, as was the threat inherent in subordinating the defense function to the judiciary. While the committee deferred on creating an independent entity at what they termed “this initial phase,” they offered this observation:

Clearly, the defense function must always be adversary in nature as well as high in quality. It would be just as inappropriate to place the direction of the defender system in the judicial arm of the government as it would be in the prosecutorial arm. Consequently, the committee recommends that the need for a strong independent administrative leadership be the subject of continuing congressional review until the time is right to take the next step.¹

Prado Report

Despite these significant concerns, no significant review took place until 20 years later when a committee not unlike today’s Ad Hoc Committee was established. That committee — generally known as the Prado Committee after its chairman Judge Edward Prado — identified myriad problems that pervaded the federal public defense system. The root cause of many of these problems was the very lack of independence that the architects identified 20 years earlier.

Many of the substantive Prado Committee recommendations were enacted after the report was released in 1993, but the key provision — the creation of a Center for Federal Criminal Defense Services with substantial independence from the judiciary — was rejected by the Judicial Conference. The Judicial Conference concluded that there was “an inadequate empirical basis to support the need for independence of the defense function from the judiciary.” It did accept the final recommendation of the Prado Report — namely that there should be a review of the CJA program on an ongoing basis, with a comprehensive review and analysis every seven years by “an independent entity.” But, no such comprehensive review was initiated for another 20 years — after the crisis of 2012- 2013 nearly brought the federal public defense system to its knees.

In the course of an investigation undertaken by NACDL, which I will discuss in a moment, NACDL learned of a nonpublic, internal report produced in 2004. Although this 29-page report found that many of the problems identified by Prado had grown worse, it cursorily dismissed the suggestion that defender services should be placed outside the judiciary. It responded to the question of whether Defender Services should be “a separate program within the judiciary” with this prophetic conclusion: “Establishing the Defender Services as a separate program within the judiciary would not provide any advantage to the judiciary in terms of securing more funding for its other accounts.” (emphasis added)

Note that the question was viewed not through the prism of what is best for the defense function, but rather what is best for securing funding for other judiciary accounts.

And then less than a decade later the storm hit.

Minimizing Defenders’ Role

A series of bureaucratic reorganizations denigrated the role of defender services. The authority of the Defender Services Committee — the judicial committee with responsibility for the defense function — was transferred to the Judicial Resources Committee. Later the Defender Services Office itself was demoted from a distinct high-level office within the Administrative Office of the Courts to one of six entities under a Department of Program Services. This lumped the Sixth Amendment’s right to counsel with such court functions as Judiciary Data and Analysis, Probation and Pretrial Services, and Case Management Systems.

In effect, the defense function became what the 2004 internal report referred to as “an account.”

Of course, the impact of this diminishment of the defense function within the judiciary was clearly demonstrated when sequestration hit. I hardly need to recount those dark days:

Severe lay-offs in defender offices.
Payment delays.
Compensation rate reductions.
Decimated offices.
Public and private defenders personally hard hit.
Service to clients placed at risk or disrupted.

For those of us who have long struggled to improve the dismal crisis in public defense that has afflicted the states — it was a bone-chilling shock to see the system that we always pointed to as the best fall into disarray and chaos.

The silver lining was the vast outpouring of support for the federal public defense system from the defender community and from others who cherish the Sixth Amendment. Support also came from many outside groups, not the least of which was NACDL.

NACDL Task Force

NACDL undertook a litany of initiatives to work with others to foster harmony within the defense function and to promote funding support on Capitol Hill. It also took the extraordinary step of establishing a Task Force on Federal Indigent Defense to study the entire system. This was what the Congress recommended in the early 1970s and what the Judicial Conference had pledged to do in the early 1990s, but never did.

As we all know, the 2014 budget agreement alleviated the immediate crisis. Much of the funding was restored, rates were brought back up, and life went on. But not really. The passage of time and an infusion of funding can mask even the most serious problems. For most, the crisis of 2013 receded into memory. Many of the groups that had rallied during the crisis turned their attention elsewhere.

But not NACDL. The work of the task force continued. We knew that serious problems persisted, and that the temporary infusion of funding did not address the underlying systemic deficiencies.

Its 12 volunteer members from across the country — including state and federal defenders, panel attorneys, private attorneys and a volunteer reporter, law professor Joel Schumm — undertook a massive review of the system.² They used surveys and questionnaires. They pursued and reviewed every available report to assess the system.

Task force members conducted more than 150 interviews. They talked to everyone from the head of the AO, judges who currently and previously served on the Defender Services Committee, circuit judges and Defender Service Office personnel, to defenders in defender offices and community defenders, panel attorneys, and voucher clerks.

Altogether, members of the task force obtained input from every circuit and most districts, embracing 49 of the 50 states. The result of their work is this report: Federal Indigent Defense 2015: The Independence Imperative.³ It documents a system that no doubt is far better than any state system in this country.

But it also found that the federal public defense system is rife with problems. Most of the problems stem from the lack of independence from the judiciary and the judiciary’s persistent lack of transparency in how it administers the program. Control over selection, appointment, reappointment, retention, and payment chills the entire federal public defense infrastructure. It is a system that in many ways cannot even be called a system. The approach is often arbitrary and in almost all cases lacks transparency. Variation in practice and procedure from circuit to circuit, district to district, and even judge to judge is common.

The task force presented seven core recommendations, which were subsequently adopted as formal NACDL policy. I am not going to repeat them here, but clearly the most important are independence and transparency. The umpire or the referee cannot also act as the coach, manager, or owner. A defender cannot engage in aggressive, effective, client-centered advocacy if the appointment as a defender or a panel member hinges on a decision by the judge before whom the defender must advocate.

We do not have many people with criminal defense experience sitting on our federal benches. In most cases, the judge is the person least suited to understand the nature and kind of work that must be done for each individual client. To have judges decide what work is reasonable, what experts are needed, when to investigate, and what motions to file is as absurd as an umpire deciding when to make a pitching change. This is the reason independence, along with adequate resources and lack of transparency, are at the core of the task force recommendations.

To segue to my core message, I call your attention to recommendation seven. The task force called for a comprehensive, independent review of the CJA to address the concerns identified in the report.

As you might imagine, several months elapsed between the time of the extensive inquiry and the final production of the report, and its findings and recommendations were certainly no state secret. It was during that interregnum, with publication looming, that the outgoing director of the AO announced in December 2014 that a committee would be established to conduct the long overdue review.

And, as you know, in April 2015 the members of the Ad Hoc Committee to Review the Criminal Justice Act were appointed. This is exactly what we had hoped for.

Of course, like Prado we called for an independentreview. Some will question whether the Ad Hoc Committee to Review the Criminal Justice Act, populated with many judges, meets that criterion. It is a legitimate concern. But it is also a fact that if substantial changes are to be made to the current system, they cannot and will not occur without judicial support. I suggest that we suspend judgment and let the committee do its work. The inclusion of defenders and the representative of the CJA Panel will ensure that irrespective of its eventual conclusions, it will have the benefit of all points of view. Thus far, the committee has conducted its work with laudable and complete transparency.

What NACDL did with its report was to responsibly and thoroughly highlight the core problems and propose solutions. But our task force realized that what was required was a far more in-depth, meticulous, and empirically supported study. The folks who undertook this NACDL review were all volunteers — working full time jobs. None of them received a penny. The entire budget for this project — the entire budget — was $8,653. I understand that the Ad Hoc Committee has been provided a very significant budget. That is a good thing. It needs to do a thorough job and it must develop a complete record.

Creating a Record

As the work of the Ad Hoc Committee has unfolded, with several hearings around the country, including for the past two days here in San Francisco, the committee is developing precisely the kind of in-depth record that will be required to support change. It is in building that record that you have the challenge and opportunity that I spoke about. You are all criminal lawyers. Whether you do trial work, appellate or post-conviction — you know how critically important it is to make a record. That is what must now happen while this committee is still in the inquiry phase.

The first thing you should do is look at some of what has already been presented. It is there for you to see at https://cjastudy.fd.org — written testimony and video of oral testimony. It will astonish you. Some of it will prompt outrage; some will make you euphoric. But all of it is illuminating.

And it should be. In the short time since NACDL issued its report, we heard continuing and highly disturbing stories of how the lack of independence imperils the program. We have heard of efforts to dissolve a community defender office for dubious reasons. We have heard of instances in which efforts have been made to recoup fees that were approved and paid after the fact — simply because some judge decided that that an attorney “did too much work.”

Read the testimony of Mark Windsor, a former federal defender, who has served on a panel for more than a decade. He has handled mega cases. He was assigned to a murder case in which his client was the last defendant remaining in a 41-defendant case that included 47,396 documents, 784 hours of media recordings, and multiple transcripts from prior relevant trials. He is told to disgorge more than $44,000, $28,000 of which had been previously approved and paid. This was done in a process with no guidelines or transparency. There was no allegation that the time billed was inappropriate or overstated.

Among the reasons eventually provided after the district court engaged in what was called a “reasonableness review” is that Mr. Windsor’s client was less culpable (as the driver of the car) and less involved in the gang — and therefore much of the discovery was purportedly not relevant to the defense of this client. It was determined that the 28 pages of “targeted discovery” provided by the government should have allowed Mr. Windsor to significantly reduce his review of discovery. In other words, in the eyes of the reviewing judge, an attorney should rely on what the government thinks is important to prove its case, and ignore everything else that might undermine it. In addition, it was claimed that Mr. Windsor “engaged in more litigation than was appropriate and spent time on motions that would have been better spent on other tasks.”

Do you think we need some independence? That is what this Ad Hoc Committee needs to hear.

But not surprisingly, with thousands of people involved in the federal defense structure, you will see some who are quite content with how things are. There are those who grow comfortable and complacent, and they will use these hearings as an opportunity to preserve the status quo. The lessons of 2013 mean nothing to people like this.

And there are people whose lack of empathy or understanding for the defense function blinds them to obvious deficiencies.

Consider this testimony from a Fifth Circuit court official that was provided in the Ad Hoc Committee’s Birmingham hearings. It is in the record. This court official sees an inherent problem in letting defense lawyers determine what work should be done because they are the beneficiaries of the expenditures. He says that “decisions on expenditures must take into account the likelihood of diminishing returns on defense efforts.”

He goes on to say that “relying solely on counsel’s professional judgment” is not always sufficient. “Fortunately,” he says, “there is a professionally neutral person thoroughly familiar with the situation who can help ensure that sound decisions are made about the appropriateness of proposed expenditures. And that person is the presiding judge.”

This is all there for you to see. I kid you not.

There is more: “I see no more conflict of interest in asking judges to make decisions about defense decisions than asking them to make decisions about any other aspect of the case,” he says. And in opposing any formal mechanism to review a judge’s decision to slash a voucher, he says that a decision about the “right amount” is subjective and any appeal mechanism would not be “cost effective.”

But this court official’s view makes perfect sense when you place it in the context of how he sees the Sixth Amendment. In explaining why he feels that compensation rates are adequate and judges should maintain tight control of defense resources, the true color of this thinking shines brightly:

In my opinion, the idea that defense resources should be equivalent to those of the prosecution is mistaken. The prosecution is supposed to convict the guilty. Defense counsel is there to make sure that the prosecution has not made a mistake, that its case is sufficient, that it has played by the rules, and if these conditions are satisfied to help the defendant obtain the best possible outcome.

The defense is a quality control check on the process. A disparity of resources between the two sides should neither surprise nor concern anyone.

So, I guess the next time you are assigned a client, don’t tell her you are there to represent her. Instead, tell her you are the quality control expert to make sure she gets properly convicted! This may seem ridiculous, but when you have an open process, a public process, you have to make sure that the record reflects the reality. That is your challenge.

All of you represent the 10,000 to 14,000 lawyers who handle CJA assignments. Their voices must be heard.

These Stories Must Be Told

I participated in many of the interviews conducted by the NACDL task force. I spoke to lawyers from many jurisdictions. Even in places where the general perception is that things are good, we heard stories that could make you cry.

A lawyer from my home state of New York said that he deals with judges who will fight any voucher that exceeds the cap. If he puts it in, at best, he will have to wait months and months. And he cannot survive without the cash flow. So he just limits his voucher or does not do the work.

We heard of lawyers who cannot bill for travel. They either have to eat that time or just not see their clients. These stories are out there. Many lawyers have just accommodated themselves to the reality. It is like an abuse accommodation syndrome. They are afraid. This is their livelihood.

By the way, it’s not just panel attorneys. I have heard of defenders who are reluctant to raise certain issues because of the judicial control of their appointment.

These stories must be told — every one of them. There are ways that you can do it so that an attorney’s identity can be protected. I know that during this conference there will be brainstorming sessions on how to get the information to the Ad Hoc Committee. It all hinges on you. Judge Cardone told me that the committee wants to survey every lawyer. You need to make sure the lawyers respond. We have to make the record. We cannot be told at the end of the day, as we were 20 years ago, that “there’s no evidence of a problem.”

At the end of the day, this record will be the basis for reform. Regardless of the committee’s recommendations, this record will be there. Whether or not the Ad Hoc Committee recommends reforms and whether or not the Judicial Conference adopts them, this record will be there. It will be there for the public, for the Congress, and for posterity.

As the representatives of the panels, you can make this happen. Thank you for rising to meet this challenge, and thank you for your dedication to the right to counsel and the clients we serve.

Notes

Report of the Committee to Review the Criminal Justice Act 9-10 (1993) (the Prado Report) (quoting Senate Report No. 91-790, 91st Cong. 2d Sess. April 23, 1970, at 18).
These NACDL members served on the task force: Bonnie Hoffman, Willis G. Coffey, Josh A. Cohen, Jerry J. Cox, Michael P. Heiskell, Norman R. Mueller, David Patton, David M. Porter, Cynthia W. Roseberry, Ronald Tyler, Susan J. Walsh, Lisa Monet Wayne, and William P. Wolf.
Read the report at http://www.nacdl.org/federalindigentdefense2015.