Page 17 - Ad Hoc Report June 2018
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 them—believed the system provided “adequate” or “very adequate” representation to indigent defendants in federal court.5 Because those lawyers and judges were enmeshed in the system they failed to see its weaknesses.
Thanks to decades of leadership by the judiciary, Congress, defenders them- selves, and others, the system of public defense at the federal level is a vast improve- ment on the ad hoc services that predated the Criminal Justice Act. But it is no less important today than it was in 1962 to take stock of what is happening in courts around the country.
It was only in studying the federal defender system as a whole and hearing from witnesses across the country that the members of this Committee have come to the unanimous conclusion that despite the best efforts of all parties involved in deliver- ing effective representation under the Sixth Amendment, the current structure for providing public defense results in disparities in the quality of representation that have serious consequences for some defendants. The Committee hopes its report illuminates the scope and nature of these problems and underlying structural flaws from which they arise—and makes a persuasive case for meaningful change.•
5 Id.at588
  Establishing a System of Public Defense in the Federal Courts
Although defendants in federal court have been guaranteed representation, regardless of ability to pay, since the 1938 Supreme Court ruling in Johnson v. Zerbst,6 for almost three decades there was no national system for appointing lawyers or pool of money to pay them. Few legal aid societies existed at the time, so federal judges had to find attorneys in private practice willing to work on a pro bono basis. Because seasoned trial attorneys were rarely interested in these cases, young lawyers, often with no criminal law or trial experience, represented the vast majority of indigent defendants.7 Attorneys were obliged to use their own resources to pay for all defense expenses, including expert witnesses, investigators, and other services. In 1963 an Alabama dis- trict court, ruling in United States v. Germany, found that burden ultimately denied the accused a full-throated defense as required under the Sixth Amendment.8
Even before Johnson v. Zerbst, the Federal judiciary had been calling for a formal system of indigent defense. As early as 1937, the Judicial Conference of the United States recommended establishing defender offices where caseloads justified them,9 and repeated that recommendation for years to come.10 Once again judges were
 6 Johnson v. Zerbst, 304 U.S. 458 (1938).
7 Bruce J. Havighurst & Peter MacDougall, Note, The Representations of Indigent Criminal Defendants
in the Federal District Courts, 76 Harv. L. Rev. 582-583 (1963).
8 United States v. Germany, 32 F.R.D. 343, 344 (M.D. Ala. 1963).
9 Rep. of the Judicial Conf. of the U.S. 8-9 (Sept. Sess. 1937), available at sites/default/files/1937-09_0.pdf.
10 Robert J. Kutak, The Criminal Justice Act of 1964, 44 Neb. L. Rev. 703, 711 (1965).
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 xv
States unless approved by the Conference itself.

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