Page 181 - Ad Hoc Report June 2018
P. 181

 voucher requesting more than the case maximum, he sends the lawyer a letter explaining, “I’m going to have to send this up for circuit review unless you just want to take the statutory maximum.”623 According to that judge, “Most of the time the lawyer will write back and say, ‘I’ll take the statutory maximum,’ and it never goes up for review.”624 For many attorneys, remaining under the cap is “so much easier . . . than trying to jump through all the hoops . . . and having to go to the circuit judge.”625 Accordingly, panel attorneys testified that they frequently “just absorb the cost.”626
Panel attorneys testified that it is sometimes difficult for them to zealously represent their clients while continually weighing whether expenditures will be viewed as reasonable and reimbursable by a reviewing circuit judge.627 As the Federal Public Defender for the Districts of North Dakota and South Dakota explained, it is “difficult to provide appropriate representation . . . if one of the things going through the back of your mind is whether your voucher’s going to be cut if the person goes to trial or you put the appropriate amount of time in to handle the case.”628 Attorneys who must constantly make these types of calcula- tions are not able to serve the “undivided interests” of their clients as the Sixth Amendment requires.629
Testimony showed further that in some circuits voucher cutting is used
as an inappropriate cost-saving measure. For example, attorneys in the Eighth Circuit frequently experience significant cuts to their vouchers.630 Of the 131 excess vouchers submitted to the circuit from the District of Nebraska between December 2012 and May 2016, “thirty percent were cut at the chief judge lev- el.”631 These cuts were made despite the fact that the presiding district judges had concluded that the cases were “extended or complex” and that reimburse- ment was “necessary to provide fair compensation.”632 The circuit did not cut the vouchers because it disagreed with the district judges’ findings of reasonable- ness. Rather, the circuit denied these attorneys full payment because the review- ing judge believes that “part of CJA representation should be a public service” and that “no lawyer is entitled to full compensation for services for the public
623 JudgeLeonHolmes,E.D.Ark.,PublicHearing—Birmingham,Ala.,Panel1,Tr.,at25.
624 Id.
625 James Broccoletti, CJA Panel Atty. Dist. Rep. E.D. Va., Public Hearing—Philadelphia, Pa., Panel
4, Tr., at 29.
626 Id.
627 See,e.g.,RobertRichman,CJAPanelAtty.D.Minn.,PublicHearing—Minneapolis,Minn.,Panel4,
Tr., at 3.
628 NeilFulton,FPD,D.N.D&D.S.D.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.,at3.
629 PolkCty.v.Dodson,454U.S.312,318–19,(1981)(quotingFerriv.Ackerman,444U.S.193,204(1979)). 630 SeeAppendixF.
631 DavidStickman,FPD,D.Neb.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.,at1.
632 18U.S.C.§3006A(d)(3).
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 137
 States unless approved by the Conference itself.
 
















































































   179   180   181   182   183