Page 134 - Ad Hoc Report June 2018
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CJA representations. The attorney must also consider the client’s interest: The judge will make numerous discretionary calls over the course of the litigation that could either help or harm her client.
The problem becomes acute when panel attorneys must challenge a judge’s ruling.374 One panel attorney described his dilemma when confronting a judge who, having denied his motion to suppress evidence, then wanted to cut his fees: “[A]t the same time that he’s refusing to pay my bill and he’s literally saying that I spent too much time on suppression issues. I am looking at his ruling and memo- randum thinking that he’s made errors and I need to challenge this.”375
A defender recounted a case where a panel lawyer moved to recuse a judge because of a conflict of interest in a case. After a denial of that motion and the com- pletion of the case, the same judge then reviewed the panel lawyer’s voucher:
This lawyer was also an experienced CJA lawyer and had previously been in the defender’s office. He raised a conflict of interest between the judge overseeing the case . . . where the guards were charged with violating civil rights of some prisoners at a prison. The judge, right off the bat at the very beginning, said, “Well I have represented this prison on many occa- sions.” We kind of saw that as a conflict of interest quite frankly. So that issue was raised. [The judge] was very perturbed that it would be, that he would be called unethical by any standard, and he cut that whole por- tion of the voucher . . . 376
A judge’s decisions to deny payment in one case can reverberate and affect advocacy in other cases. A panel attorney described one case initially designated “extended or complex” by the district court and in which all of the attorneys repre- senting the defendants who pleaded guilty were compensated well above the case maximum. One defendant went to trial. After conclusion of the trial, the presiding judge decided the case was not “extended or complex” and authorized only the case maximum—which was, at that time, $10,000. This ruling required the attorney who had received interim payments to pay back $50,000 to the court. Defense attorneys observed that this “claw back” has had a “tremendous chilling effect across the pan- el.”377 The message perceived by members of the panel was that the court thought this case should not have been tried.
Moreover, when attorneys seek approval to hire experts, justifying the request often requires disclosing confidential information to the judge in writing or defending the request in person. As one judge recognized, this can function as “a
374 E.GerryMorris,PresidentNACDL,PublicHearing—SantaFe,NM,Panel4,Tr.at9.
375 MarkShea,CJAPanelAtty.,D.Mass.PublicHearing—Philadelphia,Pa.,Panel4,Tr.at20.
376 TinaHunt,Exec.Dir.,CDO,M.D.Ga.,PublicHearing—SantaFe,NM,Panel3,Tr.at35.
377 MarkWindsor,CJAPanelAtty,C.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel3,Tr.at14(for another example of a similar claw back, see Windsor Tr. at 5-8).
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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