Page 184 - Ad Hoc Report June 2018
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buffer between defenders and the district courts before whom they more routinely appear. But defenders know, or at least perceive, that the circuit judges rely heav- ily on the comments from their colleagues on the district court bench.”644 This arrangement may lead some federal public defenders to base their decision-mak- ing at least in part on the preferences of district court judges, rather than focusing on what is best for their clients. One recently-appointed federal defender explained this conflict as follows: “I can tell you as a new defender having to make decisions; it’s there in your mind that the judges are the ones that have appointed you. Not that you made any conscious decisions that way, but it’s there.”645
A former Deputy Assistant Director of the Defender Services Office told the Committee that:
There is a certain pressure that comes from having a regular four-year appointment that’s true for federal public defenders that doesn’t really exist for community defender organizations. [Some judges] regularly feed candidates to an office and say, I’d like you to hire these people, insist on vetting assistant defender hires, [or tell defenders,] “I don’t know that I want you providing representation in this class of cases because it’s taking too long. It’s not as efficient.”646
The Committee also received private testimony about a federal public defender whose refusal to allow circuit involvement in the office’s budgeting of capital cases jeopardized the defender’s reappointment. Review of defender office litigation bud- gets is beyond the powers granted to the circuit court by the CJA. Heads of com- munity defender organizations, by contrast, are insulated from this kind of pressure because they are hired by the organization’s own independent board of directors.
The current structure creates conflicts between federal defenders’ self-interest in reappointment and their ethical duty to provide effective and zealous represen- tation to their clients. In most cases, circuit appointment of federal public defenders does not significantly hinder the defense function. Nonetheless, in an adversarial system, where judges are neutral arbiters, any actual or perceived control of the defense function by the judiciary can undermine the legitimacy and effectiveness of the criminal justice system as a whole.
6.2.2 Staffing Issues
Under the CJA, “The Federal Public Defender may appoint...full-time attorneys in such number as may be approved by the court of appeals of the circuit.”647 As
644 DavidPatton,Exec.Dir.,CDO,E.D.N.Y.&S.D.N.Y.,PublicHearing—Philadelphia,Pa.,Panel3,Writ. Test., at 2–3.
645 ThomasPatton,FPD,C.D.Ill.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.,at13.
646 SteveAsin,FormerDeputyAssistantDirector,PublicHearing—Philadelphia,Pa.,Panel7,Tr.,at30. 647 18U.S.C.§3006A(g)(2)(A).
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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