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June 2010

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This article is in the news archives --- for current news go to the Third Branch News.


The Making of a CJA Attorney

Jeff Lindy clearly remembers the first Criminal Justice Act (CJA) case he took in the Eastern District of Pennsylvania 16 years ago. At the time Lindy was a private practitioner after several years as an assistant district and U.S. attorney. His client was a reputed mobster.

“I remember sitting in the cellblock, the earnest CJA attorney, carefully explaining to my client the ramifications of being a government witness. My client listens to it all, then calmly and respectfully tells me that, although he appreciated me explaining the pitfalls and advantages of cooperating, he really doesn’t have much choice now because he’d spent the entire previous week talking to the FBI.” Despite this momentary setback, Lindy still went on to negotiate a favorable plea agreement for his client—and has continued to represent clients as a CJA panel attorney ever since. Now, as the CJA panel attorney representative for the Eastern District of Pennsylvania and as a faculty member with the training program of the Office of Defender Services, Administrative Office, he also helps train CJA panel members and federal public defenders around the nation, including the 200- plus private attorneys who are CJA panel members in his district.

“I like public service and I like doing the work,” said Lindy. “By representing indigent criminal defendants, it makes my practice more interesting and diverse.” His district, like other districts around the country, takes the training of its panel attorneys very seriously, with introductory programs for new CJA attorneys and CLE courses for the more experienced. Lindy’s specialty area of training is mental health—the client’s.

“I’ve found that, more often than not, my clients who are indigent may have a host of mental health issues, in addition to learning disabilities and substance abuse problems. I help attorneys see that these issues can be a mitigating factor at sentencing and, occasionally, can rise to the level of an affirmative defense at trial,” he said.

Representations by Federal Defenders and Panel Attorneys 2001-2009
(click to enlarge)

Nationwide, there are more than 10,000 attorneys who take cases under the CJA. The law guarantees the right to counsel, generally in criminal offenses, for any person financially unable to obtain adequate representation. Federal defenders who serve 90 of the 94 districts take many of these cases, but where they cannot, a CJA attorney is assigned the case.

“The mixed system of federal defenders and panel attorneys creates synergy in furnishing representational services to CJA-eligible defendants, drawing from the best of both worlds,” said Chief Judge Claire V. Eagan (N.D. Okla.) and chair of the Judicial Conference Committee on Defender Services. “Highly expert, full-time federal defenders join with the knowledgeable, broadly experienced private criminal defense bar, striving to provide—in keeping with a critical goal of the Defender Services program—appointed counsel services that are consistent with the best practices of the legal profession. We are very grateful for their public service.”

Every district is required to have a plan for furnishing CJA representation, including panel attorneys who are appointed in a substantial proportion of the cases, and training is required in some districts for an attorney to be admitted to or retained on the local CJA panel.

“CJA attorneys are well skilled, but they’re not going to get to trial as often as federal prosecutors,” said Judge Ricardo M. Urbina (D.D.C.), who heads the training component of the Long-Range Planning and Education Subcommittee of the Committee on Defender Services. “The U.S. attorney offices do a superb job of training their people, and our Committee thought it was important to balance the equation and install something comparable for our federal defenders and CJA attorneys.”

Training programs for appointed counsel are held regularly throughout the country. A website for CJA practitioners, www.fd.org, lists seminars and workshops on a variety of topics from electronic courtroom presentation to sentencing advocacy. Last year, the Committee sponsored the first Trial Skills Academy for federal defenders, which Urbina, Bob Burke chief of the training branch within the Administrative Office’s Defender Services Office, and a group of federal defenders and CJA panel attorneys helped design and coordinate. It was so successful, the program was held again in April 2010, expanded this time to include CJA attorneys.

“It was very intensive with training 6-7 hours a day,” said Urbina. “We covered everything from selecting a jury to closing arguments.”

In the 2010 program, a jur­­y composed of citizens from the San Diego community, where the Academy was held, heard all of the closing arguments in a fact problem developed from a real case. Jurors then retired to deliberate while a camera in the room broadcast their interactions to the program participants.

“We were able to watch as the jurors argued and reviewed evidence. They made it very realistic. I suspect they forgot it was a simulation,” said Urbina.

After the jury delivered its verdict, the jurors answered questions from the Academy participants about their deliberations and the attorneys’ performances.

“As a collective experience,” said Urbina, “everyone learned. This is the type of program that can help judges ensure the quality of representation.” He also stressed the importance of federal defenders and CJA attorneys working together. “Our training is just one more opportunity for the two to interface and function more as a unit.”

Many federal defender offices provide training for CJA attorneys in their districts.

“Our CJA attorneys are very good,” said David Beneman, the Federal Public Defender in the District of Maine. “They’re committed to indigent defense.” The district continually offers training. “This week, we’re holding a joint meeting with the prosecutor’s office and our panel attorneys from the Bangor area,” he said. “We’ll talk about language in plea agreements, discovery schedules, what triggers bail concerns. We’ll help our panel attorneys understand the rules and constraints, how to plan, and how to present information.”

The district also has offered training for panel attorneys on understanding medical records and reports by experts, the terms and acronyms of police reports, and how to cross-examine.

“We share with them, and help them work through cases,” Beneman said.

Stephen Lindsay has been a panel attorney in the Western District of North Carolina since 1985, a faculty member of the National Criminal Defense College in Macon, Georgia, and the CJA Trial Skills Academy. He estimates he helps train CJA attorneys 6–8 weeks of the year.

“The majority of the training I provide focuses on trial skills, working with attorneys to help them find ways they can be more persuasive in the courtroom. Litigation skills improve across the board when we teach these skills.”

Lindsay likes to work on basic communication skills, from eye contact and active listening, to how to present a compelling story based on facts. In many programs, lawyers bring actual cases to work on. “They are asked to bring the losers,” he says, and claims acquittal rates rise to 65–75 percent after they work together on those cases.

The training and interface with fellow practitioners and federal defenders is invaluable, because federal practice can be very different from what an attorney is accustomed to at the state level.

“The clients usually require a lot of attention due to the myriad of psycho-social issues that many of them bring to a representation. And you’re going up against really smart and talented prosecutors and special agents,” said Lindy. “CJA work isn’t for everyone. But if you like criminal law and have a solid background in it, and if you want to be challenged—while giving back to society—then it could be for you.”

Lindy and Lindsay are quick to add that CJA attorneys aren’t taking cases for the money, although many attorneys supplement their income with the assigned representations. CJA attorneys are paid an hourly rate of $125 in non-capital cases, $178 per hour in capital cases. Most experienced criminal defense attorneys charge considerably higher hourly rates for retained work.

“It’s a way of giving community service,” said Lindsay. “When I graduated from law school, my mother gave me a poster that said, ‘Thou Shalt Not Stand Idle By.’ Court-appointed cases involve people who desperately need your help—many don’t realize that.”

“If an attorney wants to handle criminal defense cases, then CJA representation provides a wonderful professional challenge,” said Beneman. “People pay attention to your case. You get the records and reports and experts you ask for. You’re listened to. And professionally, it is a pleasure to appear before a federal judge.