Page 135 - Ad Hoc Report June 2018
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 deterrent.”378 “They have to come in and see me face to face...and explain to me why [they] need this particular expert in this particular case.”379 One panel attorney explained he was reluctant to ask judges for expert services because “I don’t want them to know that I think that this might be an issue in this case. Because what if the expert, I asked for it and then I don’t use the expert, what does the judge think the expert found and is that going to affect the judge?”380 Similarly, another panel attorney testified: “I feel uncomfortable explaining that process to the same judge that is going to be deciding my client’s fate. I do a lot of work in child pornography cases. I do a lot of submissions for experts for forensics reviews. I do a lot of requests for psychologists. Often times I don’t use those individuals, and yes I’m concerned [about that].”381 A panel attorney district representative explained that it can com- promise an effective defense to disclose “defense strategies that haven’t been fully worked out,” and disclose confidential information about your client “that you otherwise would never tell a judge.”382 A federal defender told the Committee, “My attorneys share really intimate and important details of a client’s mental health and other parts of their [life] in order for us to decide together whether this is money well spent....I cannot imagine having to go say those things to any judge.”383
An attorney reluctant to disclose to the presiding judge confidential information necessary to justify hiring an expert—or an attorney facing a judge who has denied similar services in the past—may simply abandon that line of defense or mitigation.
That judicial review of fees can discourage appropriate advocacy is particularly problematic. As the Supreme Court has made clear, “Attorneys work...under canons of professional responsibility that require the exercise of independent judgment on behalf of the client: ‘A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.’”384 Independence of defense counsel is
a bedrock principle of our adversarial criminal justice system. The structure of the CJA which requires the presiding judge to fix compensation of appointed attorneys and approve expert services requests appears to directly violate this principle. If the system is to “advance the public interest in truth and fairness,” a defense lawyer must serve “the undivided interests of his client.”385 The Court also stated that, “equally important, it is the constitutional obligation of the State to respect the professional
378 Mag.JudgeMichaelPutnam,N.D.Ala.PublicHearing—Birmingham,Ala.,Panel1,Tr.at22.
379 Id.
380 DanielAlbregts,CJAPanelAtty.,D.Nev.,PublicHearing—SanFrancisco,Cal.,Panel4,Tr.at43. 381 GilbertSchaffnit,CJAPanelAtty.Dist.Rep.,N.D.Fla.,PublicHearing—Miami,Fla.,Panel6,Tr.at28. 382 PeterSchweda,CJAPanelAtty.Dist.Rep.,E.D.Wash.,PublicHearing—Portland,Or.,Panel5,Tr.at6. 383 LaineCarderella,FPD,W.D.Mo.,PublicHearing—Birmingham,Ala.,Panel2,Tr.at4.
385 PolkCountyat318–19(1981)(quotingFerriv.Ackerman,444U.S.193,204(1979)).
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 91
 384 PolkCountyv.Dodson,454U.S.312,321–22,(1981)(quotingDR5-107(B),ABACodeof Professional Responsibility (1976)).
 States unless approved by the Conference itself.

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