Preamble
Appendix I includes the recommendations and accompanying commentary
contained in Part II of the report prepared by the Defender Services Committee's
Subcommittee on Federal Death Penalty Cases entitled, Federal Death Penalty Cases:
Recommendations Concerning the Cost and Quality of Defense Representation (report).
The Judicial Conference of the United States adopted the recommendations in the report
on September 15, 1998. The commentary accompanying the report has not been
approved by the Judicial Conference, but is included in Appendix I, as it expands upon
the recommendations, discusses the role of federal defender organizations in federal death
penalty cases, and generally provides practical information that is useful to judges and
appointed counsel in the management of a federal death penalty case.
1. Qualifications for Appointment.
a. Quality of Counsel. Courts should ensure that
all attorneys appointed in federal death penalty cases are well qualified, by virtue of their
prior defense experience, training and commitment, to serve as counsel in this highly specialized and
demanding type of litigation. High quality legal representation is essential to
assure fair and final verdicts, as well as cost-effective case management.
b. Qualifications of Counsel. As required by
statute, at the outset of every capital case, courts should appoint two counsel, at least one of
whom is experienced in and knowledgeable about the defense of death penalty cases. Ordinarily,
"learned counsel" should have distinguished prior experience in the trial, appeal, or post-conviction
review of federal death penalty cases, or distinguished prior experience in state death
penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure
high quality representation.
c. Special Considerations in the Appointment of
Counsel on Appeal. Ordinarily, the attorneys appointed to represent a death-sentenced federal
appellant should include at least one attorney who did not represent the appellant at trial. In
appointing appellate counsel, courts should, among other relevant factors, consider:
i. the attorney's experience in federal criminal appeals and capital appeals;
ii. the general qualifications identified in paragraph 1(a), above; and
iii. the attorney's willingness, unless relieved, to serve as counsel in any
post-conviction proceedings that may follow the appeal.
d. Special Considerations in the Appointment of Counsel in
Post-Conviction Proceedings. In appointing post-conviction counsel in a case where
the defendant is sentenced to death, courts should consider the attorney's experience in federal
post-conviction proceedings and in capital post-conviction proceedings, as well as
the general qualifications set forth in paragraph 1(a).
e. Hourly Rate of Compensation for Counsel. The rate of compensation
for counsel in a capital case should be maintained at a level sufficient to assure the
appointment of attorneys who are appropriately qualified to undertake such representation.
Commentary
As Recommendation 1(a) indicates, the first responsibility of the court in a federal death
penalty case is to appoint well-trained, experienced and dedicated defense counsel. Federal law
requires the appointment of two counsel to represent a defendant in a federal death penalty case,
of whom at least one must be "learned in the law applicable to capital cases." 18 U.S.C. § 3005.
Additional requirements relating to counsel's experience are codified at 21 U.S.C. § 848(q)(5)-(7).
Legislatures, courts, bar associations, and other groups that have
considered the qualifications necessary for effective representation in death penalty proceedings
have consistently demanded a higher degree of training and experience than that required for
other representations. Such heightened standards are required to ensure that representation is
both cost-effective and commensurate with the complexity and high stakes of the litigation. The
standards listed in Recommendations 1(b) - (d) are designed to assist courts in identifying the
specific types of prior experience which have been deemed most valuable in the experience of
the federal courts thus far. They emphasize the importance of bringing to bear both death penalty
expertise and experience in the practice of criminal defense in the federal courts.
Recommendation 1(b) calls for the appointment of specially qualified counsel "at the
outset" of a case, because virtually all aspects of the defense of a federal death penalty case,
beginning with decisions made at the earliest stages of the litigation, are affected by the
complexities of the penalty phase. Early appointment of "learned counsel" is also necessitated by
the formal "authorization process" adopted by the Department of Justice to guide the Attorney
General's decision-making regarding whether to seek imposition of a death sentence. (See
United States Attorney's Manual § 9-10.000.) Integral to the authorization process is a
presentation to Justice Department officials of the factors which would justify not seeking a
death sentence against the defendant. A "mitigation investigation" therefore must be undertaken
at the commencement of the representation. Since an early decision not to seek death is the least
costly way to resolve a potential capital charge, a prompt preliminary mitigation investigation
leading to effective advocacy with the Justice Department is critical both to a defendant's
interests and to sound fiscal management of public funds.
Trial courts should appoint counsel with "distinguished prior experience" (Recommendation 1(b)) in death
penalty trials or appeals, even if meeting this standard requires appointing a lawyer from outside the
district in which a matter arises. The preparation of a death penalty case for trial requires knowledge,
skills and abilities which are absent in even the most seasoned felony trial lawyers, if they lack capital
experience. An attorney knowledgeable about the nature of capital pretrial litigation, the scope of a
mitigation investigation and the impact of the sentencing process on the guilt phase is indispensable and
generally produces cost efficiencies. The costs of travel and other expenses associated with "importing"
counsel from another jurisdiction can be minimized with careful planning by counsel and the court. With
appropriate forethought, investigations, client counseling, court appearances and other obligations can be
coordinated to maximize the efficient use of counsel's time and ensure cost-effectiveness.
Recommendations 1(c) and (d), with respect to the appointment of appellate and post-conviction counsel,
respond to the requirement of 21 U.S.C. § 848(q) that representation in death
penalty cases continue through post-conviction proceedings. Because trial counsel ordinarily
will be precluded by a conflict of interest from representing the defendant in a post-conviction
proceeding under 28 U.S.C. § 2255, continuity of representation and the efficient use of
resources generally will best be achieved by appointing, at the appellate stage, at least one new
lawyer who may continue to provide representation in any post-conviction proceedings. This
should promote continuing representation by a lawyer who is already familiar with the record. In
determining which, if any, of a death-sentenced defendant's prior counsel to appoint as post-conviction or
appellate counsel, courts should consult with those counsel, the district's federal
defender organization and/or the Administrative Office. (See Recommendation 2.)
Recommendation 1(e) reflects the fact that appropriate rates of compensation are essential
to maintaining the quality of representation required in a federal capital case. The time demands
of these cases are such that a single federal death penalty representation is likely to become, for a
substantial period of time, counsel's exclusive or nearly exclusive professional commitment. It
is therefore necessary that the hourly rate of compensation be fair in relation to the costs
associated with maintaining a criminal practice. Federal statute currently provides for an hourly
rate of up to $125 (21 U.S.C. § 848 (q)(10)(A)), which the Subcommittee finds to be adequate at
the present time. However, this figure should be reviewed at least every three years, to ensure
that it remains sufficient in light of inflation and other factors. (See 18 U.S.C. § 3006A(d)(1).)
2. Consultation with Federal Defender Organizations or the
Administrative Office.
a. Notification of Statutory Obligation to Consult. The Administrative
Office of the U.S. Courts (Administrative Office) and federal defender organizations should
take appropriate action to ensure that their availability to provide statutorily
mandated consultation regarding the appointment of counsel in every federal
death penalty case is well known to the courts. (See 18 U.S.C. § 3005.)
b. Consultation by Courts in Selecting Counsel. In each case involving
an offense punishable by death, courts should, as required by 18 U.S.C. § 3005, consider the
recommendation of the district's Federal Public Defender (FPD) (unless the
defender organization has a conflict) about the lawyers to be appointed. In
districts not served by a Federal Public Defender Organization, 18 U.S.C. § 3005
requires consultation with the Administrative Office. Although not required to do
so by statute, courts served by a Community Defender Organization should seek
the advice of that office.
c. Consultation by Federal Defender Organizations and the Administrative
Office in Recommending Counsel. In discharging their responsibility to recommend
defense counsel, FDOs and the Administrative Office should consult with Federal
Death Penalty Resource Counsel in order to identify attorneys who are well
qualified, by virtue of their prior defense experience, training and commitment, to
serve as lead and second counsel.
Commentary
Since 1994, courts have been required to consider the recommendation of their federal public defender
organization1 or the Administrative Office regarding the appointment
of counsel in each federal death penalty case. The Administrative Office has notified courts of this
relatively recent innovation, and it has been largely followed and yielded results satisfying to
judges, defense counsel and prosecutors. In a small number of cases, however, the
Subcommittee found that courts had ignored or been unaware of the consultation requirement.
For that reason, Recommendation 2(a) suggests that the Administrative Office take further steps
to ensure that all courts are familiar with their obligations in this area and with the nature of the
assistance which will be provided to them upon their request (see Commentary accompanying
Recommendation 2(c)).
Recommendation 2(b) reflects the Subcommittee's view that recommendations
concerning appointment of counsel are best obtained on an individualized, case-by-case basis.
The relative infrequency of federal death penalty appointments, and the typically swift response
which any court requesting a recommendation can expect, makes lists or "panels" of attorneys
both unnecessary, and in some respects, impractical. Currently, within approximately 24 hours
of receipt of a request, the Administrative Office or federal defender provides the court with the
names of attorneys who not only are qualified to serve as counsel but who also have been
contacted and indicated their willingness to serve in the particular case
2. These individualized recommendations help to ensure that counsel
are well-suited to the demands of a particular case and compatible with one another and the defendant.
Case-specific consultation is also required by existing Judicial Conference policy (see paragraph 6.01B
of the Guidelines for the Criminal Justice Act (CJA Guidelines), Volume VII, Guide to Judiciary
Policies and Procedures, explaining the 18 U.S.C. § 3005 consultation requirement and suggesting that
in developing a recommendation, consideration be given to "the facts and circumstances of the case.").
Recommendation 2(b) also suggests that in districts served by a Community Defender
Organization (rather than a Federal Public Defender Organization) courts extend the statutory
requirement and seek the recommendation of the head of that organization about appointment of
counsel in federal death penalty cases. The omission of specific reference to Community
Defender Organizations in the statute is not explained in any legislative history, and consultation
with a Community Defender Organization is likely to be as valuable as consultation with a
Federal Public Defender Organization.
To
assist federal defender organizations and the Administrative Office in discharging
their responsibility to recommend counsel, the judiciary has contracted with three Federal Death
Penalty Resource Counsel, experienced capital litigators whose work is described in Section C.2
of Part I of the report. Recommendation 2(c) recognizes the value of the assistance provided by
Resource Counsel and urges federal defenders and the Administrative Office to continue to work
closely with them. Resource Counsel are knowledgeable about and maintain effective
communication with defense counsel nationwide. Their ability promptly to match attorneys with
cases is of great value to the judiciary.
3. Appointment of More Than Two Lawyers.
Number of Counsel. Courts should not appoint more than two lawyers to
provide representation to a defendant in a federal death penalty case unless exceptional
circumstances and good cause are shown. Appointed counsel may, however, with prior
court authorization, use the services of attorneys who work in association with them,
provided that the employment of such additional counsel (at a reduced hourly rate)
diminishes the total cost of representation or is required to meet time limits.
Commentary
The norm in federal death penalty cases is the appointment of two counsel per defendant.
More than two attorneys should be appointed only in exceptional circumstances. Courts
contemplating the appointment of a third counsel might consider contacting the Administrative
Office for information and advice about whether circumstances warrant such appointment.
Notwithstanding this suggested limit on the number of attorneys charged with responsibility for
the defense in its entirety, courts are encouraged to permit appointed counsel to employ
additional attorneys to perform more limited services where to do so would be cost-effective or
otherwise enhance the effective use of resources. For example, in many federal death penalty
cases the prosecution provides to defense counsel an extensive amount of discovery material
which must be reviewed for relevance and organized for use by the defense. Providing legal
assistance to appointed counsel at a lower hourly rate may prove economical or it may be a
necessity in light of court deadlines. This is consistent with existing Judicial Conference policy
with respect to all Criminal Justice Act representations (see CJA Guideline 2.11A), and is
emphasized here because of its cost containment potential in capital litigation.
4. Appointment of the Federal Defender Organization (FDO).
a. FDO as Lead Counsel. Courts should consider appointing the
district's FDO as lead counsel in a federal death penalty case only if the following conditions are
present:
i. the FDO has one or more lawyers with experience in the trial and/or
appeal of capital cases who are qualified to serve as "learned counsel"; and
ii. the FDO has sufficient resources so that workload can be adjusted
without unduly disrupting the operation of the office, and the lawyer(s) assigned to
the death penalty case can devote adequate time to its defense, recognizing that the case may
require all of their available time; and
iii. the FDO has or is likely to obtain sufficient funds to provide for the
expert, investigative and other services reasonably believed to be necessary for the defense of
the death penalty case.
b. FDO as Second Counsel. Courts should consider appointing the
district's FDO as second counsel in a federal death penalty case only if the following conditions
are present:
i. the FDO has sufficient resources so that workload can be adjusted
without unduly disrupting the operation of the office, and the lawyer(s) assigned to the death
penalty case can devote adequate time to its defense, recognizing that the case may require all
of their available time; and
ii. the FDO has or is likely to obtain sufficient funds to provide for the
expert, investigative and other services reasonably believed to be necessary for the defense of
the death penalty case.
Commentary
Federal defender organizations have provided representation in only a small number of
the federal death penalty cases filed to date. In many cases, representation by defender
organizations has been precluded because of conflicts of interest which arise because the
organization has represented either another defendant or a witness in the case. Even where the
defender organization is not disqualified by a conflict, however, there are good reasons to
proceed with caution in making appointments in this area. A decision to appoint a defender
organization either as lead or as second counsel in a capital case should be made only after
consideration of the factors identified in this Recommendation and consultation between the
court and the federal defender.
Recommendation 4(a) is intended to inform courts, which are accustomed to relying on
federal defenders to undertake the most difficult representations, that few federal defender
attorneys currently possess appropriate qualifications and experience to act as lead counsel in a
federal death penalty case. Because violent felony offenses, particularly homicides, rarely are
prosecuted in the federal courts, there is little opportunity for federal court practitioners to learn
even the fundamentals relevant to the guilt phase defense of a federal death penalty case. Unless
they gained such experience in state court before joining the defender organization, most federal
defender attorneys have little to no experience defending a homicide case; of those who did bring
with them such state court background, few have capital experience.
Notwithstanding these considerations, however, there is much to be gained from the
involvement of a defender organization in the defense of a federal capital case. Recommendation
4(b) suggests pairing a defender organization as co-counsel with an experienced capital litigator,
an approach which has successfully been employed in some cases. In these cases, the defender
organization has benefitted from the expertise of the "learned counsel" and gained valuable
capital litigation experience as well. At the same time, the "learned counsel" has benefitted from
the institutional resources and local court expertise of the defender staff. Whether as lead or
second counsel3, a federal defender organization should not be
required to undertake more than one federal death penalty representation at a time unless the head of
the organization believes such an arrangement is appropriate. Recommendations 4(a) and (b) acknowledge
that capital cases inevitably and seriously disrupt the normal functioning of an office. To undertake too
much death penalty litigation would seriously threaten the effective performance of a defender
organization's overriding responsibility to provide representation to a substantial number of
financially eligible criminal defendants in its district each year.
5. The Death Penalty Authorization Process.
a. Streamlining the Authorization Process.
The Department of Justice should consider adopting a "fast track" review of cases involving
death-eligible defendants where there is a high probability that the death penalty will not be sought.
b. Court Monitoring of the Authorization
Process. Courts should exercise their supervisory powers to ensure that the death penalty
authorization process proceeds expeditiously.
Commentary
A decision not to seek the death penalty against a defendant has large and immediate
cost-saving consequences. The sooner that decision is made, the larger the savings. Since the
death penalty ultimately is sought against only a small number of the defendants charged with
death-punishable offenses, the process for identifying those defendants should be as expeditious
as possible in order to preserve funding and minimize the unnecessary expenditure of resources.
Recommendation 5(a) calls upon the Department of Justice to increase the speed with which it
makes decisions not to authorize seeking the death penalty. Recommendation 5(b) urges judges
to oversee the authorization process by monitoring the progress of the decisionmaking and
imposing reasonable deadlines on the prosecution in this regard. Courts should also ensure that
the prosecution's timetables allow for meaningful advocacy by counsel for the defendant.
6. Federal Death Penalty Resource Counsel.
a. Information from Resource Counsel. In all federal death penalty
cases, defense counsel should obtain the services of Federal Death Penalty Resource Counsel in
order to obtain the benefit of model pleadings and other information that will save
time, conserve resources and enhance representation. The judiciary should
allocate resources sufficient to permit the full value of these services to be
provided in every case.
b. Technology and Information Sharing. The Administrative Office should
explore the use of computer-based technology to facilitate the efficient and cost-effective sharing of
information between Resource Counsel and defense counsel in federal death penalty cases.
Commentary
Recommendation 6(a) urges the judiciary and counsel to maximize the benefits of the
Federal Death Penalty Resource Counsel Project (described in Section C.2 of Part I of the
report), which has become essential to the delivery of high quality, cost-effective representation
in federal death penalty cases, and to ensure the Project's continued effectiveness.
Recommendation 6(b) recognizes that recent innovations in computer technology are
making it increasingly easy and inexpensive for individuals who are geographically dispersed to
share information. The Administrative Office should explore the feasibility and cost-effectiveness of
using computer and other technology to enhance the delivery of support to appointed counsel in federal
death penalty cases.
7. Experts.
a. Salaried Positions for Penalty Phase Investigators. The federal
defender program should consider establishing salaried positions within FDOs for persons trained to
gather and analyze information relevant to the penalty phase of a capital case.
FDOs should explore the possibility that, in addition to providing services in
death penalty cases to which their FDO is appointed, it might be feasible for these
investigators to render assistance to panel attorneys and to other FDOs.
b. Negotiating Reduced Rates. Counsel should
seek to contain costs by negotiating reduced hourly rates and/or total fees with experts and other
service providers.
c. Directory of Experts. A directory of experts willing to provide the
assistance most frequently needed in federal death penalty cases, and their hourly rates of billing,
should be developed and made available to counsel.
Commentary
Penalty phase investigators, or "mitigation specialists," as they have come to be called,
are individuals trained and experienced in the development and presentation of evidence for the
penalty phase of a capital case. Their work is part of the existing "standard of care" in a federal
death penalty case. (See Section B.7 of Part I of the report.) Because the hourly rates charged by
mitigation specialists are lower than those authorized for appointed counsel, employment of a
mitigation specialist is likely to be a cost-effective approach to developing the penalty phase
defense.
Mitigation specialists are, however, in short supply. In most of the federal death penalty
cases the Subcommittee examined, penalty phase investigators were not available locally. Courts
thus were required to pay for the costs of travel and related expenses in addition to paying the
mitigation specialist's hourly rates. Recommendation 7(a) suggests ameliorating this problem by
employing and training persons for this work in federal defender organizations. Because of the
cost containment potential, the feasibility of having these salaried employees work not only on
cases to which their federal defender organization is appointed, but on others within their region,
should be explored as well.
Recommendation 7(b) encourages counsel to negotiate a reduced hourly rate for expert
services whenever possible. Private experts must be employed in death penalty cases, but the
cost of their services can and should be contained. When asked to provide services for the
defense of an indigent criminal defendant, many experts are willing to accept fees lower than
their customary hourly rates for private clients. In addition, courts and counsel should agree in
advance to a total amount which may be expended for a particular expert. If it appears that costs
will exceed the agreed-upon amount, counsel should return to the court for prior authorization to
secure them. If travel costs are to be incurred, government rates should be obtained.
8. Training.
Federal Death Penalty Training Programs. The Administrative Office should continue to offer
and expand training programs designed specifically for defense counsel in federal death penalty cases.
Commentary
All of the defense counsel interviewed by the Subcommittee stressed the importance of
participating in specialized death penalty training programs. Although the individuals appointed
as "learned counsel" comprised a highly experienced group of lawyers, they nevertheless
continued to attend training programs to update and refine their skills and knowledge, and
emphasized that they availed themselves of such opportunities whenever possible. There are,
however, very few training programs anywhere in the country specializing in the defense of death
penalty cases, and there is only one — an annual one-day program organized by the Federal
Death Penalty Resource Counsel Project and funded by the Administrative Office — focusing
entirely on federal death penalty representation. Almost all of the defense counsel the
Subcommittee interviewed had attended this program and identified it as a significant resource.
With the case law relatively undeveloped and so many issues being litigated for the first time, the
opportunity for counsel to benefit from the research of others and to share information and ideas
was considered especially important and cost-effective. The Administrative Office and Federal
Death Penalty Resource Counsel should ensure that training opportunities continue to meet the
needs of appointed counsel in this area.
9. Case Budgeting.
a. Consultation with Prosecution. Upon learning that a defendant is
charged with an offense punishable by death, courts should promptly consult with the prosecution
to determine the likelihood that the death penalty will be sought in the case and to find out when
that decision will be made.
b. Prior to Death Penalty Authorization. Ordinarily, the court should
require defense counsel to submit a litigation budget encompassing all services (counsel, expert,
investigative and other) likely to be required through the time that the Department of Justice (DOJ)
determines whether or not to authorize the death penalty.
c. After Death Penalty Authorization. As soon as practicable after the
death penalty has been authorized by DOJ, defense counsel should be required to submit a further
budget for services likely to be needed through the trial of the guilt and penalty phases of the
case. In its discretion, the court may determine that defense counsel should prepare budgets for
shorter intervals of time.
d. Advice from Administrative Office and Resource Counsel. In preparing
and reviewing case budgets, defense counsel and the courts should seek advice from the Administrative
Office and Federal Death Penalty Resource Counsel, as may be appropriate.
e. Confidentiality of Case Budgets. Case budgets should be submitted
ex parte and should be filed and maintained under seal.
f. Modification of Approved Budget. An approved budget should guide
counsel's use of time and resources by indicating the services for which compensation is authorized.
Case budgets should be re-evaluated when justified by changed or unexpected circumstances, and should
be modified by the court where good cause is shown.
g. Payment of Interim Vouchers. Courts should require counsel to submit
vouchers on a monthly basis, and should promptly review, certify and process those vouchers for
payment.
h. Budgets In Excess of $250,000. If the total amount proposed by
defense counsel to be budgeted for a case exceeds $250,000, the court should, prior to approval,
submit such budget for review and recommendation to the Administrative Office.
i. Death Penalty Not Authorized. As soon as practicable after DOJ
declines to authorize the death penalty, the court should review the number of appointed counsel and
the hourly rate of compensation needed for the duration of the proceeding pursuant to CJA Guideline
6.02.B(2).
j. Judicial Conference Guidelines. The Judicial Conference should
promulgate guidelines on case budgeting for use by the courts and counsel.
k. Judicial Training for Death Penalty Cases. The Federal Judicial
Center should work in cooperation with the Administrative Office to provide training for judges
in the management of federal death penalty cases and, in particular, in the review of case budgets.
Commentary
The Judicial Conference has endorsed the use of case budgets to manage the cost of
capital habeas corpus cases. (CJA Guideline 6.02.F.) Case budgets for federal death penalty
cases are designed to serve purposes similar to those accomplished by case budgets for capital
habeas corpus cases. A complete case budget will require the lawyer to incorporate cost
considerations into litigation planning and will encourage the use of less expensive means to
achieve the desired end. For example, a budget might request appointment of an expert to
perform a task that could be accomplished by a lawyer, justifying the request by showing that the
expert's work will produce a corresponding reduction in the attorney hours required.
Submission and review of a budget will also assist the court in monitoring the overall cost
of representation in the case, and determining the reasonableness of costs. Case budgets are
increasingly being requested by courts or submitted by lawyers in federal death penalty cases.
Most judges and lawyers interviewed by the Subcommittee were receptive to the idea of case
budgeting, provided that persons with expertise in the defense of federal death penalty cases were
available to assist in the development or the review of a case budget. Recommendation 9(d)
encourages courts and counsel to seek such assistance from the Administrative Office and
Federal Death Penalty Resource Counsel.
Because of the unpredictability of pretrial litigation, it is impractical to require counsel to
budget for an entire case from start to finish. At a minimum, the budgeting process should be in
two stages, as suggested in Recommendations 9(b) and (c). The first stage begins when the
lawyer is sufficiently familiar with the case to be able to present a budget reasonably related to
the anticipated factual and legal issues in the case and continues until the Department of Justice
makes its decision as to whether it will seek the death penalty. If a death penalty notice is filed, a
further budget should be prepared. The court may require a single budget from authorization to
trial, or a series of budgets covering shorter increments of time. If the prosecution will not seek
the death penalty, Recommendation 9(i) calls for the court to review the case in accordance with
CJA Guideline 6.02.B(2), to determine whether the number or compensation of counsel should
be reduced.
Because case budgeting is time consuming, and because federal death penalty cases in
which the prosecution decides not to seek the death penalty cost much less than cases in which
the death penalty is authorized, it may not be cost-effective for counsel to prepare a case budget
if authorization is improbable. For this reason, Recommendation 9(a) encourages courts to
inquire of the prosecution whether authorization is unlikely. Furthermore, inquiring into the date
by which the authorization decision will be made will provide information about how long a
period the initial budget should cover, which will assist courts in reviewing budgets. If a significant
mitigation investigation is to be undertaken, the Subcommittee recommends that a budget be developed for this
work.
Recommendation 9(e) calls for case budgets to be submitted ex parte and maintained
permanently under seal. A case budget requires defense counsel to spell out the overall litigation
plan for the case. Consequently, it is an extremely sensitive document and contains privileged
information. This approach is consistent with Judicial Conference policy regarding capital
habeas case budgets. (CJA Guideline 6.02F.)
Review of case budgets greater than $250,000 by the Administrative Office should assist
courts in determining whether the cost of representation is reasonable in light of experience in
other similar cases and in identifying areas in which expenses might be reduced.
10. Case Management.
a. Non-Lawyer Staff. Where it will be cost-effective, courts should consider
authorizing payment for services to assist counsel in organizing and analyzing
documents and other case materials.
b. Multi-defendant Cases.
i. Early Decision Regarding Severance. Courts should consider making an
early decision on severance of non-capital from capital co-defendants.
ii. Regularly Scheduled Status Hearings. Status hearings should be held
frequently, and a schedule for such hearings should be agreed upon in
advance by all parties and the court.
iii. "Coordinating Counsel." In a multi-defendant case (in particular a multi-defendant case in which more than one individual is eligible for the death
penalty), and with the consent of co-counsel, courts should consider
designating counsel for one defendant as "coordinating counsel."
iv. Shared Resources. Counsel for co-defendants should be encouraged to
share resources to the extent that doing so does not impinge on
confidentiality protections or pose an unnecessary risk of creating a
conflict of interest.
v. Voucher Review. In large multi-defendant cases, after approving a case
budget, the court should consider assigning a United States magistrate
judge to review individual vouchers. The court should meet with defense
counsel at regular intervals to review spending in light of the case budget
and to identify and discuss future needs.
Commentary
Recommendation 10(a) recognizes that the large volume of discovery materials and
pleadings associated with a federal death penalty case may make it cost-effective for courts to authorize (and appointed counsel to employ) the services of law clerks, paralegals, secretaries or
others to perform organizational work which would otherwise have to be performed by counsel at
a higher hourly rate. (See also Commentary accompanying Recommendation 3, endorsing the
practice of authorizing counsel to obtain the services of additional attorneys under appropriate
circumstances.) Judicial Conference policy provides that, in general, appointed counsel may not
be reimbursed for expenses deemed part of their office overhead (CJA Guideline 2.28); however,
unusual expenses of this nature may be compensated (CJA Guideline 3.16). The Guidelines
suggest that in determining whether an expense is unusual or extraordinary, "consideration
should be given to whether the circumstances from which the need arose would normally result in an additional charge to a fee paying client over and above that charged for overhead
expenses" (CJA Guideline 3.16).
Recommendations 10(b)(i) - (iv) address some of the particular management burdens
associated with multi-defendant federal death penalty cases. Special efforts are required to
ensure the orderly administration of justice in these matters, which tend to become costly and
cumbersome for courts and counsel.
Recommendation 10(b)(i) suggests that courts make early decisions concerning severance
of non-capital from capital co-defendants. In general, capital cases remain pending longer than
non-capital cases and involve far greater amounts of pre-trial litigation. Separating the cases of
non-capital co-defendants, where appropriate, may lead to swifter and less costly dispositions in
those cases. The earlier such a decision is implemented, the greater will be the cost savings.
Recommendation 10(b)(ii) suggests that courts schedule frequent status hearings so that
discovery and other matters may proceed efficiently and so that problems may be noted early and
swiftly resolved. If the schedule for such status hearings (on a monthly or other basis) is agreed
upon in advance, then all parties can plan accordingly and valuable time will not be wasted while
counsel and judges try to find a mutually convenient time for their next meeting.
Recommendation 10(b)(iii) suggests that, if all counsel agree, courts consider designating
the attorneys for one defendant as "coordinating counsel." Coordinating counsel might be
responsible for arranging the efficient filing and service of motions and responses among the co-defendants,
scheduling co-counsel meetings and court dates, facilitating discovery, or any other
tasks deemed appropriate by counsel and the court. In multi-defendant cases where the federal
defender organization represents a defendant eligible for the death penalty, courts should (taking
into account the views of the federal defender) consider designating the FDO as coordinating
counsel because of its institutional capabilities. In the event that a panel attorney is designated as
coordinating counsel, the additional time and resources demanded by this role should be
compensated.
11. Availability of Cost Data.
The Administrative Office should improve its ability to collect and analyze information about case
budgets and the cost of capital cases.
Commentary
Only because there have been a comparatively small number of federal death penalty
cases was it possible to assemble -- by painstaking manual collection -- the cost data relied upon
by the Subcommittee. This process was necessitated by the limitations of the only available
information source, the CJA payment system. The Administrative Office is in the process of
replacing that system. Given the heightened significance of capital case costs to the federal
defender program, the Administrative Office should give priority to ensuring that its new system
will provide capital case data which is accurate, reliable and accessible. In addition, the
Administrative Office should continuously track capital case costs so that the impact of appellate
and post-conviction litigation can be analyzed, trends in case costs can be readily identified, and
appropriate cost-containment mechanisms can be developed.
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