Page 137 - Ad Hoc Report June 2018
P. 137

 more than a decade—described a similar realization: “judges are actually not in a good position to evaluate anything effectively with respect to defense strategy, and I know that now sitting on the bench....[T]here are things that I don’t see, that I can’t see in the context of defense of a case and that I’m not likely ever to be able to see.”389 He elaborated:
First, one of the things as a judge that you never client manage- ment issues as it relates to investigation. There’s no way to capture that. You won’t see why, for example, is someone having to, in a document case that’s 200 documents, spending 30 hours to go to the client review there. The client may have mental challenge issues. You may not want the judge to know that. The client may have education issues. You may not want the judge to know that.390
The problem this judge faces in reviewing a voucher is not just that he lacks direct knowledge of what goes on outside of his courtroom but also that, in our adversarial system, he shouldn’t have access to this information. There are things that a defense attorney should not communicate to the judge who will later decide her client’s fate and is duty-bound to act as a neutral arbiter.
One judge explained that, because he simply cannot know the work an attor- ney puts in outside the courtroom, he evaluates vouchers not using a reasonable- ness standard but based on his personal familiarity with the panel attorney:
[T]here is no way that I can know whether a claim for a time item by a lawyer is real or reasonable, or anything of that sort, other than looking at the reputation of the lawyer that I know. If it’s a lawyer that I have known for years, and I know is trustworthy, I have no reason to assume that there’s going to be a padded or fraudulent voucher submitted to me.391
The number of federal judges with significant criminal defense experience is limited. As one judge said: “Personally, I’m not sure we’re very competent to do it. Most of us have been out of the practice of law for a long time and...the farther we get removed from the practice of law, I think the more inexpert we become at judg- ing what is a reasonable cost.”392 Another judge stated:
[W]hen the judge hasn’t been trained to be a defense lawyer, never tried a defense case in their life, now is put in a position trying to determine how much money someone should get paid, that’s not fair to the judge, it’s not fair to the litigant either.393
389 JudgeRichardBoulware,D.Nev.,PublicHearing—SanFrancisco,Cal.,Panel5,Tr.at8-9.
390 Idat25.
391 Mag.JudgeMichaelPutnam,N.D.Ala.,PublicHearing—Birmingham,Ala.,Panel1,Tr.at18. 392 JudgeRosannaPeterson,E.D.Wash.PublicHearing—Portland,Or.,Panel3,Tr.at3.
393 ChiefJudgeRanerCollins,D.Ariz.,PublicHearing—SantaFe,NM,Panel1,Tr.at18.
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 93
 States unless approved by the Conference itself.

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