Page 248 - Ad Hoc Report June 2018
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Out-of-District Appointments
Because finding qualified counsel willing to accept federal habeas cases can be exceedingly difficult, district judges sometimes seek to appoint federal defend-
ers from outside their district or circuit. These federal defenders regularly improve the quality of representation and bring resources necessary in these cases. There was a particular need for outside assistance in the circuits which had banned their own federal defenders from creating CHUs. However, some of these same circuits have also discouraged the appointment of defenders located outside their circuit.963 Objections voiced by those circuits’ judges led to the creation of a Defender Services Committee policy making more burdensome the appointment of federal defenders from outside their district. A retired district court judge testified that during the time he was Chair of the Defender Services Committee, shortly after an out-of-state attor- ney was appointed to a capital habeas case, he received a call from the chief judge of the circuit in which that case was pending:
Not even asking, basically directing me to unappoint that capital habeas unit lawyer. I told the chief judge I couldn’t do that. I hadn’t appointed the lawyer and couldn’t unappoint him, but I asked why. The [circuit judge answered] there were plenty of law school clinics within this circuit that would represent death row inmates for free, including in the capital habeas setting....It’s a national program, and it’s not only not a bad thing to have, to use the resources from one circuit to fill the needs in another, but it’s actually a good thing. [However,] the chief judge of a United States Court of Appeals [responded] that it violates the principles of federalism for a federal defender to go from one circuit to another to help [on] a fed- eral habeas petition.964
This was not an aberration; the Committee heard multiple stories of judges who would not appoint qualified lawyers from outside their districts, even though the lawyers were known to be highly experienced and willing to accept CJA rates substantially below their own. One witness described a federal capital habeas pro- ceeding in the Eighth Circuit, where shortly after a team of private attorneys agreed to represent the defendant, the district court informed the attorneys,
963 AOMemofromTheodoreJ.LidztoallFederalPublic/CommunityDefendersRe:Out-of-District Representations [Revised], Nov. 10, 2008 at 2. “Requirement: All out-of-district representations (other than those established in the local CJA plan) must be approved by the Office of Defender Services (ODS) prior to the appointment. Prior to approving a representation for a federal public defender organization (FPDO), ODS or the requesting FPDO will notify the chief judge of the circuit of the FPDO, and ODS will notify the chief judge of the circuit in which the appointment would be made. In addition to the foregoing requirements, and any other notifications that may be required by your district or circuit, all FDOs should consider informing the chief judges of their district and the district where the representation will occur (and, for CDOs, the chief judges of their circuit and the circuit where the representation will occur).”
964 JudgeJohnGleeson(ret.),E.D.N.Y.,PublicHearing—Miami,Fla.,Panel3,Tr.,at3–4.
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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