Page 182 - Ad Hoc Report June 2018
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good.”633 Another federal defender in the circuit interpreted these measures as an effort towards cost containment, saying, “We have a chief judge of the circuit who cuts vouchers as a cost-cutting measure. He’s open about that.”634
The circuit’s involvement in approving excess vouchers and expert costs can also diminish confidence in its appellate review. The Constitution requires that defendants be provided with adequate funds to hire appropriate experts.635 This constitutional command is all the more critical in capital cases. The case of United States v. Snarr is illustrative.636 In Snarr, a capital defendant, having been convicted and sentenced to death, argued that he was denied due process because the circuit’s chief judge denied the funding request for a “Mexican cultural expert” who would have presented mitigating information at sentencing, in part because she believed that “it would be inappropriate for testimony to be adduced by either party char- acterizing the defendant according to his national origin.”637 In doing so, this chief judge in effect supplanted the authority of the district judge to rule on the admissi- bility of evidence in a capital case, and did so as part of his voucher review respon- sibility and not as part of appellate review of the case.638 And when that defendant appealed after conviction, the appellate panel was forced to consider whether the chief judge’s action was correct and whether it was harmful. In the end, the panel found the chief judge’s decision had not prejudiced the defendant because he had been able to present some of this evidence through other witnesses.639
Giving the circuit both judicial and administrative functions has the potential to undermine respect for the rule of law. The Snarr case highlights how having these functions at the circuit level can lead to a situation which, at the very least, appears to put the circuit court in the position of reviewing its own administrative decision as a part of its judicial review.
633 DavidStickman,FPD,D.Neb.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.,at25.Insupport of these decisions, the former chief judge repeatedly cited In re Carlyle, which states that “CJA service is first a professional responsibility, and no lawyer is entitled to full compensation for services for the public good.” 644 F.3d 694, 699 (8th Cir. 2011).
634 NeilFulton,FPD,D.N.D&D.S.D.,PublicHearing—Minneapolis,Minn.,Panel2,FPDsTr.,at2–3. 635 Akev.Oklahoma,470U.S.68(1985).
636 U.S.v.Snarr,704F.3d368(5thCir.2013).
637 Id.at403.
638 Althoughthefocushereisontheconflictofhavingcircuitcourtsinvolvedinapprovingfunding requests for cases which are being litigated in district court and then reviewing that decision on appeal, this case also illustrates that the judicial role in authorizing experts can interfere with the defense counsel’s ability to pursue a particular strategy in a case.
639 Id.at405–406.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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