Page 199 - Ad Hoc Report June 2018
P. 199

 information to give them. They don’t know the advantages that an expert can bring to your case whether you’re going to trial or whether it’s miti- gation for sentencing expert. They just don’t know how to take the infor- mation that an expert can bring them and then what to do with it. I think there’s a lot of that, they’re just uncomfortable. They’ve never used them, don’t know how to use them.714
Comparing her district to another district where panel attorneys regularly employ paralegals, a panel representative explained the attorneys don’t feel “entitled to use a paralegal in every case. It’s a cultural thing, and I think that maybe we don’t have strong leadership in the CJA community. We are kind of on our own, and we look to our judges for what we are thinking is the appropriate use of resources.”715 In another district, a panel attorney identified culture and lack of institutional support as a problem as well: “We’ve got a good panel, but there is timidity. Those same people are timid about applying for experts and investigators...we’ve got to change the cul- ture.”716 However, there is currently no support to change that culture, the attorney explained. “In our area, our neck of the woods so to speak, we have a community federal offender organization. Good people, really talented lawyers as well, but they operate as kind of a private law firm separate and apart from us, the panel.”717
These cultural explanations carry some weight, but like the reasons offered by panel lawyers in response to the Committee’s survey, they are not a full expla- nation. Ultimately, it is clear that requiring judicial approval of expert services requests deters some attorneys from seeking necessary assistance. Multiple panel lawyers testified about the “chilling effect”718 the current approval process has, in addition to it being a “time-consuming [and] cumbersome procedure that goes uncompensated for the lawyers.”719
Attorneys may also find themselves in an unpleasant negotiation with the presiding judge on the expert fees. As a panel representative in one such district described her experience:
Routinely, when I request an expert and I say, “Look. I’ve talked to the expert. This is what they charge. This is how many hours I think I’m going to need. This is the amount I’m asking for,” I’m not approved for
714 BruceEddy,FPD,W.D.Ark.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at35.
715 LoriNakaoka,CJAPanelAtty.,D.Idaho,PublicHearing—Portland,Or.,Panel5,Tr.,at40–41.
716 EdwardHunt,CJAPanelAtty.,E.D.Wis.,PublicHearing—Minneapolis,Minn.,Panel4,Tr.,at22–23. 717 Id.at23.
718 LoriNakaoka,CJAPanelAtty.,D.Idaho,PublicHearing—Portland,Or.,Panel5,Tr.,at41.
719 Asanattorneyexplained,“Mostpanellawyersaresmallfirmorsolopractitioners,sotheymust rely on the court to fund the extraordinary expenses of the case. The time they must spend to file motions and memoranda and attend hearings to justify obtaining necessary defense resources...on investigators, experts, translators, forensic accountants, paralegals, document management, technical aid and the like, is often excessive and intrusive.” Rochelle Reback, Former CJA Panel Atty., M.D. Fla., Public Hearing—Miami, Fla., Panel 5, Writ. Test., at 6–7.
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 155
 States unless approved by the Conference itself.
 





















































































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