Page 146 - Ad Hoc Report June 2018
P. 146

 FINDINGS
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R E P O R T
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Other judges have predetermined what “reasonable” means, regardless of the case or circumstances. A federal defender testified: “A prevailing view by one judge is that a guilty plea is only worth $2,500, regardless of the case facts.” 435 Many judges believe they have general ideas of what classes of cases should cost and use these in reviewing vouchers: “Having reviewed that many [vouchers], do I have a gut visceral on what an average § 922 defendant should be or probation revocation should be as far as cost goes? Absolutely. Do I look at everyone independently? Yes.”436
Voucher averaging also seems to be common. Witnesses described voucher averaging in districts as geographically diverse as Puerto Rico,437 Montana,438 the Western District of Pennsylvania,439 and Texas.440 The presiding judge will compare the fees of lawyers representing co-defendants and award all fees close to the aver- age. In one case, a judge reduced a panel attorney’s voucher after comparing it to the amount a co-defendant had paid retained counsel. The CJA counsel’s voucher, although under the case maximum, was more than what the private lawyer had charged to represent the co-defendant.441 The reviewing judge thought that fact alone merited a reduction in the panel attorney’s voucher.442
These practices may seem like logical ways to save time or control costs. But
by their nature, they are contrary to the letter and spirit of the CJA, which requires judges to review each voucher independently, within the context of the client, the case, and the services provided. The process recognizes that the demands of a case vary not only by the charge but also by the amount of evidence amassed, the poten- tial lines of defense, and the peculiarities of the individual client. Relying on averages and benchmarks ignores these realities. They are inconsistent with the aim of the CJA to procure high-quality representation fitted to the needs of the case and client.
435 ParksNolanSmall,FPD,D.S.C.,PublicHearing—Miami,Fla.,Panel1,Writ.Test.at4.
436 ChiefMag.JudgeJohnOtt,N.D.Ala.,PublicHearing—Birmingham,Ala.,Panel5,Tr.at18.
437 JudgeAidaDelgado-Colon,D.P.R.,PublicHearing—Miami,Fla.,Panel3,Tr.at37:“Firstofallthe averaging not necessarily has the purpose of taking the voucher to an amount below the maximum cap. Sometimes you use it as the model”
438 TonyGallagher,Exec.Dir.,CDO,D.Mont.,PublicHearing—Portland,Or.,Panel6,Writ.Test.at 5: “Sometimes panel attorneys perceived that the decision whether to pay a voucher in full was not based on an assessment that the hours worked were reasonable and necessary to provide a defense, but were strictly tied to comparison with others in the case (‘your voucher was much higher than the co-defendant’s lawyer’).”
439 PatrickLivingston,CJAPanelAtty.Dist.Rep.,PublicHearing—Philadelphia,Pa.,Panel9,Tr.at18: “One of the cases that I became aware of in my district involved a lawyer who had done something minimally was discharged in favor of another lawyer, and I don’t know the full details of it. The other lawyer came in late in the case, and worked the file, his wiretaps, and he studied and he studied and he studied. Then in two months’ time, he got all the wiretaps reviewed and analyzed, and then he put in an interim payment, and that was one of the cases in which the judge compared what he did to what the terminated lawyer did. When I heard about it, I just scratched my head. I couldn’t understand it.”
440 RichardEsper,CJAPanelAtty.,W.D.Tex.,PublicHearing—SantaFe,NM,Panel5,Tr.at36: Despite the fact that his case had considerably different charges and circumstances, “the judge, as a justification for cutting my voucher, said it wasn’t consistent with the vouchers of the other four lawyers who represented the other four” co-defendants.
441 CoriHarbour-Valdez,CJAPanelAtty.,W.D.Tex.&D.N.M.,PublicHearing—SantaFe,NM,Panel5, Tr. at 33-34.
442 Id.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.


















































































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