Page 131 - Ad Hoc Report June 2018
P. 131

 The statute does not define “extended or complex,” and the Guide to Judiciary Policy provides minimal instruction: (1) “If the legal or factual issues in a case are unusual, thus requiring the expenditure of more time, skill and effort by the lawyer than would normally be required in an average case, the case is ‘complex’”; and
(2) “If more time is reasonably required for total processing than the average case, including pretrial and post-trial hearings, the case is extended.”359 At the current rate of $132 per hour, the case maximum of $10,300 supports just under 80 hours of attorney time. The complexity of cases prosecuted federally has increased signifi- cantly since the Prado report. As discussed in other areas of this report, there has been a radical change in the nature and a quantum jump in the volume of discov- ery. As a result, a substantial percentage of criminal prosecutions are “extended or complex,” requiring more than 80 hours for effective representation.
In these more complex cases, panel attorneys may request interim payments while the case is in process: “Where necessary and appropriate in a specific case, the presiding trial judge may arrange for interim payments to counsel and other service providers.”360 In these instances, district court judges are encouraged to withhold
20 percent of each interim payment.361 At the end of the case, the attorney sub-
mits a final voucher seeking payment of the total amount withheld from the earlier vouchers.362 The final voucher is submitted to the chief judge of the circuit court who decides how much of the withheld funds, if any, will be paid.363 The process is “designed to strike a balance between relieving court-appointed attorneys of finan- cial hardships in extended and complex cases, and the practical application of the statutorily-imposed responsibility of the chief judge of the circuit court to meaning- fully review any claims for excess compensation,” as discussed below.364
5.2 Problems with Judicial Review
Under the CJA, the presiding judge in a case decides how much the defendant’s attorney will be paid. This includes deciding whether work performed by a CJA attorney will be paid and whether the defendant’s lawyer will be able to hire investi- gators, interpreters, psychologists, forensic accountants, or other specialized services providers whom the attorney deems necessary to defend a criminal case.365 If fees
359 GuidetoJudiciaryPolicy,Vol.7A,Ch.2,§230.23.40(b).
360 AOMemorandumfromJamesC.Duff,April18,2016,ReviewandApprovalofCJAVouchers;See
Guide, Vol. 7A, §§ 230.73, 310.60.
361 GuidetoJudiciaryPolicy,Vol.7A,Appx.2C.TheCommitteeheardthatsomedistrictsrequireinterim
vouchers, but not all district judges are willing to allow interim vouchers even when there is a lengthy trial. 362 GuidetoJudiciaryPolicy,Vol.7A,Appx.2C.
363 Underanotheroption,thecircuitjudgeperiodicallyreviewscumulativeinterimvouchers.
364 GuidetoJudiciaryPolicy,Vol.7A,Ch.2,§230.73.10(c).
365 See18U.S.C.§3006A(d)(5);(e).
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 87
 States unless approved by the Conference itself.

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