Page 198 - Ad Hoc Report June 2018
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defender explained that there are financial incentives for panel lawyers to complete the investigation themselves:
[For] the majority of the panel attorneys...their sole source of income
is what they earn off of appointments. If they can do the work them- selves and bill out that two, three, or four hours then they get money they otherwise would not....It appears that what they’re wanting to do is to try to maximize the amount of money they can earn on each case, and one of the ways they try to do that is not ask for experts but rather do it themselves708
The Committee also heard other explanations for the low rate of service provid- ers. In rural areas, such as the Dakotas, Wyoming, and New Mexico, it was reported that particular types of experts are in short supply, making it “difficult to engage them on appropriate cases due to schedule, physical proximity, and conflicts with their other obligations.”709 Nationally, some panel attorneys explained that they rely on investigators and expert assistance provided by the FDO when assisting a client whose co-defendant is represented by the public defender. Others testified that they can obtain the same information as an investigator through other means and at a lower price. As one federal defender explained, though all cases can benefit from an inves- tigator, in illegal re-entry cases one of the key issues is the defendant’s “prior convic- tions, which you can get on a computer,” thus saving the cost of an investigator.710
These explanations do not fully account for the low rates at which panel attor- neys use experts. Some witnesses believed the phenomenon was explained by the differing cultures of districts. Rates of expert usage show systematic, geographic differences, reflective of what one district judge called “a matter of court culture
and what people expect.”711 “I think most of it is culture,” a federal defender told the Committee, and further noted, “I think most people are solo practitioners, come out of state court where they just don’t use experts much. I think all cases can benefit from experts.”712 A judge echoed this point, testifying that “notwithstanding that this topic is covered in educational seminars, CJA panel attorney members simply may not be aware of the variety of investigative and expert services for which compensa- tion is available under the CJA.”713 Or, as a federal defender, testified:
I think it’s also that [panel attorneys have] not used experts in the past. They don’t know how to work with one, they don’t know what type of
708 BruceEddy,FPD,W.D.Ark.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at26.
709 NeilFulton,FPD,D.S.D.&D.N.D.,PublicHearing—Minneapolis,Minn.,Panel2,Writ.Test.,at5. 710 MarjorieMeyers,FPD,S.D.Tex.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at36.
711 ChiefJudgeCatherineBlake,D.Md.,PublicHearing—Philadelphia,Pa.,Panel1,Tr.,at24.
712 MarjorieMeyers,FPD,S.D.Tex.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at36.
713 Mag.JudgeCharlesCoody,M.D.Ala.,PublicHearing—Birmingham,Ala.,Writ.Test.,at2.
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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