Page 132 - Ad Hoc Report June 2018
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exceed certain statutory thresholds, the chief judge of the circuit or a designee also must approve payment.366
This aspect of the CJA is especially problematic. More than 14 years ago, the Vera Report voiced concerns:
Judges and lawyers alike report that compensation issues, even more than the appointment process, expose the awkward, conflicting nature of the relationship between panel attorneys and the judges who effectively hire them. Unlike defender office attorneys, who are subject only to the fiscal constraints of their organization, panel attorneys are closely regu- lated by judges in every aspect of their representation. This arrangement poses potential dangers that districts must address if they are to assure high-quality defense services.367
Some judges accept this role in approving the defense attorney’s fees as a necessary obligation, given that someone must oversee the use of public funds.
And some judges see themselves as the actor most capable of (reluctantly) filling
this role—being the least bad of several poor alternatives. Still, not a single witness who testified before this Committee described the current process as ideal. Not one wholeheartedly endorsed having judges decide how much to pay one side’s lawyer.368
Reasons for dissatisfaction with the status quo are many. Some are the inevi- table result of any third-party payer system: it is difficult to align the interests of the payer and the client (in this case, the panel attorney); the payer may value services differently than the client; and the payer’s knowledge about the need for services
is limited. Other problems are peculiar to a system in which individual judges are making these decisions: With more than 1,000 federal judges, it is impossible to impose a high degree of consistency. Additionally, assigning an administrative task to the system’s highest-value employees is a poor allocation of resources, and because judges are already overworked it is difficult for them to devote sufficient time to the task. But the most pernicious problems are created by requiring the neutral arbiter
in our adversary process to step out of that role and effectively decide what resources one of the two opposing parties can bring to bear on the proceedings. As discussed below, witnesses often described this as a fundamental conflict of interest.
366 18U.S.C.§3006A(d)(3).
367 JonWool,K.BabeHowell,LisaYedid,ImprovingPublicDefenseSystems:GoodPracticesforFederal
Panel Attorney Programs, Vera Inst. of Just., 29 (June 2003).
368 Seee.g.JudgeFedericoMoreno,S.D.Fla.PublicHearing—Miami,Fla.,Panel6,Tr.at20;Judge
Max O. Cogburn, W.D.N.C., Public Hearing—Miami, Fla., Panel 2, Tr. at 19; Judge Leon Holmes,
E.D. Ark., Public Hearing—Birmingham, Ala., Panel 1, Tr. at 16; Judge Leo Sorokin, D. Mass., Public Hearing—Philadelphia, Pa., Panel 2b, Tr. at 13; Mag. Judge Michael Putnam, N.D. Ala. Public Hearing—Birmingham, Ala., Panel 1, Tr. at 18; Judge Richard Boulware, D.Nev., Public Hearing—San Francisco, Cal., Panel 5, Tr. at 8; Chief Judge Michael Seabright, D. Haw., Public Hearing—San Francisco, Cal., Panel 5, Tr. at 23; Chief Judge Raner Collins, D. Ariz., Public Hearing—Santa Fe, NM, Panel 1, Tr. at 18; Chief Judge Vicki Miles-LaGrange, W. D. Okla., Public Hearing—Santa Fe, NM, Panel 1, Tr. at 14.
No recommendation presented herein represents 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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