Page 136 - Ad Hoc Report June 2018
P. 136

  92 2 0 1 7
independence of the public defenders whom it engages.”386 Judicial determinations of the defense lawyer’s fees and the lawyer’s reaction to those determinations may compromise the independent professional judgment the law requires.
These complaints all point to a concern that the CJA distorts the adversarial process by requiring judges to decide what work panel attorneys can do and what experts they can hire. This problem is structural. In every case in which a panel lawyer is appointed, the judge will need to step out of his or her role as judge and become the defense’s paymaster. In requiring this, the CJA risks diminishing or dis- torting the defense attorney’s single-minded focus on the client’s interests.
It is as if at some point in every baseball game, the umpires would take leave from their primary roles and assume for only one team the manager’s duties of deter- mining strategy, selecting players, providing equipment, and then return to umpiring the game. In every game, the players, i.e., the lawyers, know that this will happen in the next case and the next case and the next. And if they want to stay on the team—if they want to play, and be paid to play, and get the proper equipment to play—they know they better not challenge the umpire’s calls.
5.2.2 Judges Are Not Well Situated to Decide the Reasonableness of Fees
It would be hard to accept this distortion of the adversarial process even if judges were well-equipped to review defense attorneys’ bills—but they are not. In modern federal practice, the work that is visible to the judge is the proverbial tip of the ice- berg. Our adversarial system expects that advocates will winnow the mounds of information available and bring to court only that small amount critical to deci- sion-making. As Arizona’s chief judge observed, “The judge only sees what hap- pens in the courtroom...most of the case happens outside of the court room, away from the judge’s eyes.”387 One judge who had been both an Assistant United States Attorney and a federal defender described her own realization that much of the case would never be known to her:
It was interesting, the very first trial I had I was looking around in my office. I wanted to know where the 302s were and where the statement was and then I realized, “No, no, no, you don’t get that. You are an impartial arbiter. You just decide on matters as they’re presented to you in trial.”388
Knowing so little about how the case looked to the attorney who shaped it for presentation in court, this judge found it difficult to decide what services were or weren’t reasonable. Another district judge who had been a federal defender—for
386 PolkCountyat321–22(1981)(internalcitationsomitted).
387 ChiefJudgeRanerCollins,D.Ariz.,PublicHearing—SantaFe,NM,Panel1,Tr.at18. 388 JudgeKathleenWilliams,S.D.Fla.,PublicHearing—Miami,Fla.,Panel3,Tr.at28.
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.

   134   135   136   137   138