Page 21 - Ad Hoc Report June 2018
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 unwarranted voucher cutting is prevalent throughout the country.
Judges are not required to provide a reason for cutting a voucher, and often
don’t. Panel attorneys typically lack an effective, or sometimes any, recourse for appealing the judge’s decision. Some panel attorneys testified to the Committee that they are reluctant to challenge voucher cuts, fearing reprisal by the judge within the context of the ongoing case or when submitting vouchers in the future.
The phenomenon of cost-cutting also encompasses refusal by judges to approve expenditures for non-legal services. These can be essential to mounting
an effective defense, especially when counsel is a solo practitioner, as are many panel attorneys. These services include the assistance of a skilled investigator, expert witnesses, and interpreter. Among panel attorneys surveyed by the Committee, 60 percent reported using expert services in just 1 out of 10 cases or less; and only 12 percent reported using these services in more than half their cases. In some dis- tricts, as little as two percent of cases handled by panel attorneys involved the use of experts. Judicial oversight is not the only source of this problem; it is also true that some panel attorneys do not appreciate the value of expert services, know where to find needed experts, or simply want to log more billable hours themselves.
Discouraged by the prospect of voucher cutting and the related phenomena described above, many panel attorneys have resorted to “self-cutting,” in which they deliberately do not bill for reimbursable hours or request services they suspect judges will not approve. When these self-cuts are combined with cuts by judges, the effect is systemic undermining of the defense.
The judiciary as a whole is not unsympathetic to the needs of the defense. Most judges are committed to protecting the integrity of our adversarial criminal justice system. At the same time, some judges also feel the need to cut costs, espe- cially in the wake of the 2013 Congressional budget sequestration. More signifi- cantly, when judges do not fully appreciate the time, resources, and tactical deci- sions involved in mounting a vigorous defense they are more likely to conclude that vouchers are excessive in amount or that services are unnecessary. Fundamentally, judges should not be in a position where they have to be experts in defense in order to fairly compensate and reimburse attorneys.
Even when panel attorneys are paid in full, the requirement for judicial review and approval of vouchers often results in payment delays. There are efficient rem- edies to this particular problem. Delays in payment are less common in districts where judges can rely on an initial review and recommendation by a supervising panel attorney or the local federal defender office. This should be common practice. Similarly, case budgeting attorneys have been helpful in preventing both voucher cutting and delays in payment, but they too are not available everywhere.
In addition to being insufficiently compensated, most panel attorneys lack access to training and guidance. As a result, they are behind the curve, especially in complex and quickly changing areas of practice such as electronic discovery. The
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 xix
States unless approved by the Conference itself.
 






















































































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