Page 250 - Ad Hoc Report June 2018
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facing private attorneys appointed to capital habeas cases are ones explored pre- viously in this report regarding CJA panel attorneys generally—voucher cutting, unreasonably low presumptive caps, and the failure to approve necessary resources. Each is discussed below in the context of capital habeas litigation.
Voucher Cutting
The Committee heard concerns from across the country about CJA panel attorneys not being paid, service providers that were not approved or paid, and repeated complaints about voucher cuts. Emily Olson-Gault, director of the ABA’s Death Penalty Representation Project, testified that her project receives a “constant stream of people contacting us at both the state and the federal level in post-con- viction saying, ‘My judge isn’t giving me what I need. I don’t know if I can pay my rent next month. I don’t know if I can stay on this case.’ It’s a huge ethical conflict [for the attorney]. It’s a huge problem in terms of recruitment of lawyers and it’s pervasive throughout the system.”969
Depending upon geography or judicial assignment, vouchers in death-penalty cases may be substantially cut. One private attorney who works in both the Eighth and Tenth Circuits told the Committee that she had never had vouchers cut in the Tenth Circuit, only in the Eighth. She explained that the Eighth Circuit regularly reduces capital vouchers and that her law partner, has also had her death-penalty vouchers cut. “We have challenged those. One time it was by about a third, and when we challenged it, we got a little bit more money but not the vast majority of it....[I]t was just questioning whether the work that was done in end-stage litiga- tion was proper or not.”970 The panel attorney believed the difference between the circuits was due to circuit culture and judges’ personalities. “There is a real split on the court as to their views on the death penalty generally and I think sometimes it is reflected in the voucher.”971
National Habeas Assistance Training Counsel confirmed that voucher cutting threatened effective representation and the ability to recruit qualified counsel for capi- tal representation work. He offered the following examples: Attorney fee of $50,000 cut to $25,000, a fee of $38,000 cut to $3,500, representing more than a 90 percent reduc- tion in compensation, and a fee of $126,000 cut to $30,000.972 Those cuts are not only putting lawyers on notice not to zealously advocate for clients, but “with that cutting it’s very difficult to recruit new people or to have very efficacious representation with the people that are committed to do the [federal capital habeas] work.”973
969 EmilyOlson-Gault,Director,ABADeathPenaltyRepresentationProject,Public Hearing—Birmingham, Ala., Panel 4, Tr., at 18.
970 MelanieMorgan,CJADist.Rep.,D.Kan.&W.D.Mo.,PublicHearing—SantaFe,N.M.,Panel5,Tr., at 37–38.
971 Id.at38.
972 Mark Olive, National Habeas Assistance and Training Counsel, Public Hearing—Birmingham, Ala.,
Panel 3, Tr., at 8. 973 Id.
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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