Page 160 - Ad Hoc Report June 2018
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 FINDINGS
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R E P O R T
O F
during the pendency of the case.
Regardless of the problems with the interim voucher process, most witnesses
agreed that interim vouchering is beneficial to the panel attorneys. The failure to provide interim vouchering could lead qualified and able panel attorneys to refuse more complex cases because of the financial risk. Attorneys who find themselves in the situation of facing a long trial, without any hope of compensation until its com- pletion, could become concerned that without a resolution short of trial, they might face financial hardship. The lawyer’s self-interest would then be in conflict with that of his client. This is fair to neither client nor lawyer, and it is not difficult to imagine these circumstances giving rise to a collateral attack on any conviction.
5.4.4 Lack of Due Process
Circuit courts have agreed uniformly that the decision to deny or reduce a voucher is an administrative act that cannot be appealed. Voucher reductions
at the district level are final, and panel attorneys are without recourse to judicial review.505 In most districts, panel attorneys also have no way to seek administra- tive review of payment determinations. As the Vera Report concluded, this lack of recourse diminishes panel quality in two ways: “First, highly-qualified attor- neys may choose to forgo panel membership. Second, some panel attorneys may improvidently cut corners if they cannot be confident that all their work will be compensated or reimbursed.”506
In 2006, the judiciary policy was amended, to include the following recom- mendation: “If the court determines that a claim should be reduced, appointed counsel should be provided: prior notice of the proposed reduction with a brief statement of the reason(s) for it, and an opportunity to address the matter.”507 Prior notice and an opportunity for a panel attorney to respond is not manda- tory, merely suggested; and a memorandum transmitting the new policy made clear that “no hearing, formal or otherwise, is required, and no right to review the judge’s decision is conferred.”508 Yet even this recommendation met with signif-
505 SeeforinstanceUnitedStatesv.French,556F.3d1091,1093(10thCir.2009),“Everycircuitcourt
of appeals to consider this jurisdictional question has held that CJA fee compensation determinations made by the district court are not appealable,” the Circuit had no jurisdiction to consider a voucher reduction); and In re Carlyle, 644 F.3d 694, 698-700 (8th Cir. 2011), ( “the non-adversarial nature of the CJA voucher process, which is wholly ex parte, evidences an administrative act not a judicial decision.”); see also Shearin v. United States, 992 F.2d 1195, 1196 (Fed. Cir. 1993); United States v. Bloomer, 150 F.3d 146, 148 (2d Cir.1998); Landano v. Rafferty, 859 F.2d 301, 302 (3d Cir. 1988); United States v. Rodriguez, 833 F.2d 1536, 1537–38 (11th Cir.1987); In re Baker, 693 F.2d 925, 927 (9th Cir. 1982); United States v. Smith, 633 F.2d 739, 742 (7th Cir.1980); United States v. Johnson, 391 F.3d 946, 948 (8th Cir. 2004); United States v. Linney, 134 F.3d 274, 281 (4th Cir.1998); United States v. Stone, 53 F.3d 141 (6th Cir. 1995).
506 JonWool,K.BabeHowell,LisaYedid,ImprovingPublicDefenseSystems:GoodPracticesforFederal Panel Attorney Programs, Vera Inst. of Just., 13 (June 2003).
507 GuidetoJudiciaryPolicy,Vol.7A,Ch.2,§230.36(a).
508 CommitteeofDefenderServices,AOmemo,“NewCriminalJusticeActGuidelinesRegarding
Voucher Reduction Procedures and Policies,” April 7, 2006.
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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