Page 133 - Ad Hoc Report June 2018
P. 133

 5.2.1 Requiring Judges to Determine the Defense Attorney’s Compensation Distorts the Adversarial Process
Some witnesses expressed an uneasiness and general lack of comfort, viewing the process as unseemly.369 One judge explained: “I know when I came on the bench I...did not think about the fact that would have to review vouchers. I hate it. I hate it. I can’t stand looking at other lawyers’ work and trying to decide if their work is worth what they say that it’s worth. . . . I think it would be fine for somebody else to take it on.”370 Another observed it “seems to put the judge in the position of being something like the client and determining as though the defense lawyer is “work- ing for us, and we’re determining whether or not the lawyer’s bills are appropriate under all the circumstances. It is a position that I’m not comfortable with.”371
Many witnesses focused on the fundamental unfairness of the judge deciding how much to pay one side, while the other side is unencumbered by this kind of judicial control. One judge, for example, testified, “I think a system that the judge who presides over the case, determines what experts have been hired, how much someone is paid—I think that’s a system filled with problems.”372 A panel attorney elaborated:
The judges don’t oversee whether [the United States Attorney’s Office] hire an expert, whether they bring an extra agent onto a case, whether they do any of those things. For some reason, it’s ingrained in us that for the defense side, there needs to be some judge overlooking the defense lawyer to make sure that the defense lawyer doesn’t overspend the tax- payer money. It’s the same taxpayer money on the government side.373
Every voucher submitted is an implicit representation by the attorney that she worked the billed hours and believed the work was reasonable in the context of the case. Every refusal by a judge to pay for the hours the attorney billed also carries implicit messages: that the work was not actually done, or that it was unreasonable to expend time on that work, or that it was unreasonable to spend that amount of time. That attorney, in the next case where she believes this same type and amount of work to be necessary, must now consider her own interests. She won’t be paid for the work if she does it. And the judge, who often has control over her selection to the panel as well as her appointment to the individual case will consider her profes- sional judgment suspect; after all, she continues to unreasonably expend time on
369 “Theyhatehavingtogetdownintheweedswiththelawyersonhowmuchtimetheyspenton this, that, or the other and balancing when you have a multi-defendant case, these widely disparate vouchers.” Susan Otto, FPD, W.D. Okla., Public Hearing—Santa Fe, NM, Panel 1, Tr. at pg. 42.
370 JudgeMaxO.CogburnW.D.N.C.,PublicHearing—Miami,Fla.,Panel2,Tr.at19.
371 JudgeLeonHolmesE.D.Ark.,PublicHearing—Birmingham,Ala.,Panel1,Tr.at14.
372 ChiefJudgeRanerCollins,D.Ariz.,PublicHearing—SantaFe,NM,Panel1,Tr.atpg.18. 373 DavidMarkus,CJAPanelAtty.,S.D.Fla.,PublicHearing—Miami,Fla.,Panel5,Tr.at29-30.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 89
 States unless approved by the Conference itself.
 






















































































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