High Interest Items in the Northern District of Texas High Interest Items in the Northern District of Texas! The Cardone Report, the availability of expert and investigative funding, the new CJA Plan, CJA Committee, and other useful stuff Camille M. Knight Jason D. Hawkins Of Counsel to Burleson, Pate and Gibson Federal Public Defender 900 Jackson Street, Suite 330 525 S. Griffin Street, Suite 629 Dallas, Texas 75202 Dallas, Texas 75202 (214) 871-4900 (214) 767-2746 Cknight@bp-g.com Jason_Hawkins@fd.org

Read the Executive Summary http://cjastudy.fd.org/ Read the Executive Summary One of the most significant pieces of legislation concerning the federal criminal justice system, the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, secures the Sixth Amendment right to counsel for federal criminal defendants.  Enacted in 1964, the CJA provides a system for appointing and compensating lawyers to represent defendants financially unable to retain counsel; as well as providing for payment of experts, investigators, or other needed defense services in federal criminal proceedings.  Appointed by Chief Justice John G. Roberts, Jr. in 2015 to conduct a comprehensive and impartial review of the CJA program, the CJA Review Committee was chaired by Judge Kathleen Cardone (W.D. Tex.).  Following two and a half years of study, including nearly 100 hours of testimony from 229 witnesses at seven public hearings, the final report was delivered to Director James C. Duff, Administrative Office of the U.S. Courts on November 2, 2017. The Final Verdict The Committee unanimously recommends that Congress create an independent Federal Defender Commission within the judicial branch of government, but outside the oversight of the Judicial Conference.  The Commission would have sole authority to set policy and practices related to the provisions of federal defense, a system that nearly 250,000 people each year depend upon for effective representation in federal court. While Congress weighs the merits of this recommendation and determines how best to proceed, the judiciary can and should take important steps to give defenders more authority and autonomy.  The interim recommendations, linked below, can be found at the end of the executive summary

Voucher Review Standard “Voucher cuts should be limited to mathematical errors, instances in which work billed was not compensable, was not undertaken or completed, and instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.” See Guide to Judiciary Policy, Vol 7A, § 230.33.10, and Cardone Committee Report, IR #8.

Source: CJA eVoucher data feed Voucher Reduction Statistics Non-capital, District Court, Based on Vouchers Paid FY 17 & FY 18 Source: CJA eVoucher data feed Interim vouchers reduced excluded

Source: CJA eVoucher data feed Voucher Reduction Statistics Non-capital, District Court, Based on Vouchers Paid FY 17 & FY 18 Source: CJA eVoucher data feed Interim vouchers reduced excluded

Source: CJA eVoucher data feed Voucher Reduction Statistics Non-capital, District Court, Based on Vouchers Paid FY 17 & FY 18 Source: CJA eVoucher data feed Interim vouchers reduced excluded

Case Compensation Maximums $11,500 for felonies $8,200 for felony appeals $3,300 for misdemeanors $11,50000 for non-capital post- conviction proceedings $2,500 for probation violations, supervised release hearings, mental condition hearings, civil or criminal contempt, and international extradition. The presumptive case compensation maximums are $10,900 for any felony and $7,800 for a felony appeal. [If you bust the camp for a little….then eat it so you get paid quickly. Otherwise, the district judge has to approve the voucher. Then the judge has to send it to the Fifth Circuit for review and approval.]

Waiving Case Compensation Maximums Payments in excess of CJA compensation maximums may be made to provide fair compensation in cases involving extended or complex representation when so certified by the court or U.S. magistrate judge and approved by the chief judge of the circuit (or a judge to whom the authority has been delegated) Those maximums can be waived however. Camille story….. Complex case designation – removes cap, removes Speedy Trial deadlines, allows for interim payments (with 20% withheld until end of case). CJA 27 requirements. So now experts….

Use of Experts, Investigators and Other Service Providers DSO should provide training for judges and CJA panel attorneys concerning the need for experts, investigators and other service providers. Cardone Committee Report, IR #20

Panel Attorney Use of Experts, Investigators and Other Service Providers Data source: FY14 – CJA data from CJA6x data feed; FY 17, F& 18 – CJA data from eVoucher data feed

Even in you are retained, you may get expert and investigative services through the CJA Guide to Judiciary Policy, Vol. 7A, Ch. 3, § 310.10.10 Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services. In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the client. If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant’s trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct. You can get experts appointed even if you are retained….what??? [JWP] [Reasons for hiring investigators: interview witnesses; review discovery; advise regarding warrant applications made at state level; advise regarding whether there is something fishy in the discovery you’ve gotten; getting records from state, county, TDCJ, FOIA; consult for trial; possible testifying witness for trial (if testimony is a possibility, careful with reports!) Other reasons: to be your witness; to ensure client understands communications. Interpreters: can ensure client understands communications; can translate documents; can take notes of general meeting topics with clients]

Compensation Maximums Without prior court authorization $900 CJA Guidelines § 310.20.20 With prior court authorization $2,600 CJA Guidelines § 310.20.10 Compensation Maximums That is total ….. Compensation for investigative, expert, and other services is limited to the amounts in this table for CJA- compensable work performed on or after February 15, 2019.

Getting Authorization for Services Under the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), an indigent defendant may request approval by ex-parte application for expert services when such services are necessary. The Court will expect your application to justify your need for services. The application must have sufficient information in it (who, what, why and how much) Though sealed, the application will be part of the record We talked about obtaining prior approval but you do not have to seek prior approval from the Court up to $800.00. I think that a good strategy is to get an investigator involved immediately. Begin having them start combing through the discovery and figuring out what is missing. Have them go down and visit with the client. Perhaps there is a situation where the client wants to cooperate and needs to be debriefed immediately. Or you just need someone to read the NCIC report and track down the prior convictions to see if someone qualifies as an armed career criminal. I think you could use this to better inform the court of what the expert is able to do then when the expert is approaching the $800 limit you can better document that it is easier to have the investigator do these things at $85 an hour versus you at $140.

§ 310.40 Claims for Services Other than Counsel All claims for services other than counsel, under 18 U.S.C. § 3006A(e), should include the following: (a) a statement as to the type of, dates of, and time expended for, the services provided; (b) an explanation of the fee arrangement (e.g., hourly rate, etc.); (c) an itemized statement of all expenses for which reimbursement is claimed; and (d) supporting documentation, where practicable, for all expenses of lodgings and subsistence, and for any expenses in excess of $50.

§ 320 Authorization of Investigative, Expert, and Other Services § 320.10 Investigators When necessary to an adequate representation as described above, the court may authorize, under 18 U.S.C. § 3006A(e), the services of an investigator. § 320.15 Interpreters § 320.15.10 Terms of Compensation (a) Interpreting services provided under the CJA may be compensated: according to the terms and conditions set forth in the court interpreter services contract; on an hourly rate basis; or on another appropriate basis.

§ 320.70.10 Other Services In addition to investigators, psychiatrists, psychologists, and interpreters, services other than counsel may include, but are not necessarily limited to: computer systems and automation litigation support personnel and experts; paralegals and legal assistants, including law students; neurologists and other medical experts; and laboratory experts in such areas as ballistics, fingerprinting, and handwriting [Think sentencing experts!] [What about psychological services for CJA lawyers with difficult clients???]

§ 320.70.40 Computer Hardware, Software, or Litigation Support Services (1) Providing an adequate defense may require CJA panel attorneys to utilize computer hardware, software, or litigation support services not typically available in a law office. In such cases, following the standards in § 320.70.30, counsel may apply to the court for authorization of CJA funds for the acquisition of such property or services. (2) Before seeking court approval for any computer hardware or software with a cost exceeding the limitations in § 310.20.30(a), or for the utilization of computer systems, litigation support products, services, personnel, or experts with an expected combined cost exceeding $10,000, appointed counsel must consult the National Litigation Support Team in the AO’s Defender Services Office (phone number: 510-637-3500) for guidance. Counsel must inform the court in writing of the Defender Services Office’s advice and recommendation regarding counsel’s proposed expenditure. Camille has a story…..

Standards of Practice and Training DSO should regularly update and disseminate best practices. Cardone Committee Report, IR #17.

Number of your panel members with fd.org log-in credentials 40 Number of your panel members with fd.org log-in credentials

CJA Panel Size The CJA panel must be large enough to provide a sufficient number of experienced attorneys to handle the CJA caseload, yet small enough to ensure panel members receive a sufficient number of appointments to maintain their proficiency in federal criminal defense work. See Guide to Judiciary Policy, Vol 7A, Appx. 2A, § IX.B.2, and Cardone Committee Report, IR #19.

Duties of the CJA Committee Review the operation and administration of each CJA Panel over the proceeding year, and recommend any necessary or appropriate changes to the chief judge concerning: The size of the CJA Panel; The recruitment of qualified and diverse attorneys as set forth in the plan; and Recurring issues or difficulties encountered by CJA Panel members or their CJA clients.

District Court Panel Attorney Appointment Distribution Source: CJA eVoucher data feed FY 17 & FY 18 All records for “other” appointment category excluded

District Court Panel Attorney Appointment Distribution Source: CJA eVoucher data feed FY 17 & FY 18 All records for “other” appointment category excluded

The Committee Needs Data To perform its function, the CJA Committee needs to know: Are we a diverse panel? What kind of recurring issues or difficulties do we have? Do panel members feel that they have sufficient support and qualifications to take on, for instance; cases with potential life sentences, cases involving large collateral money judgments, cases involving unusual guideline calculations, or complex cases? What is the right size for our panel? So we are going to send out a survey at some point soon. Please respond to the survey. [What about psychological services for CJA lawyers with difficult clients???]

QUESTIONS? Courthouse staff/help with eVoucher? eVoucher? Audits? Resources (fd.org)? Expert services? [What about psychological services for CJA lawyers with difficult clients???]