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August 2011

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Interview: Committee Key to Delivery of Effective Defense Services

Chief Judge Claire Eagan (N.D. Okla.)

Chief Judge Claire Eagan (N.D. Okla.)

Chief Judge Claire Eagan has been a member of the Judicial Conference Committee on Defender Services since 2002 and the committee chair since 2008. She was appointed to the U.S. District Court for the Northern District of Oklahoma in 2001 and was previously a U.S. magistrate judge. She became chief judge of the district in 2005.

What role does the Committee play in the administration and management of the federal defender and appointed counsel program?

The Committee serves as an active board of directors for the appointed counsel program. It engages in strategic planning for the Defender Services program, reviews and approves all budgets and grants for federal defender organizations (or FDOs), works with the Budget Committee to devise the Defender Services budget request to Congress, and recommends to the Judicial Conference changes to the CJA Guidelines. We are stewards of the program, and are always mindful of its mission—to ensure that the right to counsel guaranteed by the Sixth Amendment, the CJA, and other congressional mandates is enforced on behalf of those who cannot afford to retain counsel and other necessary defense services. To measure our progress, during my tenure on the Committee, surveys were conducted to assess the courts’ ability to obtain qualified counsel for appointments. Studies of CJA plans and practices, both at the district court level and the court of appeals level, were conducted, resulting in recommended “good practices” for CJA panel management. They can be found at http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/Publications.aspx.

Cost-containment has been a key Judiciary priority, especially in the current fiscal climate. How does your committee conserve limited resources when the number, nature, complexity, and changing representational requirements of cases are beyond the Judiciary’s control?

It is true that our program activities, like those of the rest of the Judiciary, are reactive. While the Sixth Amendment, the Criminal Justice Act, and other statutes govern the categories of persons eligible for representation, it is Congressional legislation and charging decisions of the United States attorney’s offices that determine our workload. However, the Committee is well aware of the need to contain costs, and in light of the current fiscal crisis, has intensified its efforts to do so. With regard to federal defender offices, the Defender Services Committee works closely with offices on capital and non-capital “mega-cases” to assure the most efficient use of resources in these high-cost representations. On the panel attorney side of the program, one of our successful cost-containment efforts was realized through the Case-Budgeting Attorney Pilot Project. This four-year activity, which placed a case-budgeting attorney in the 2nd, 6th, and 9th Circuits, was evaluated by the Federal Judicial Center. Its report found that the project accomplished cost savings without diminishing quality by working with panel attorneys to develop case budgets in high-cost cases, including identifying means of cost containment, and making recommendations to judges regarding expenditures. Following a study by the Federal Judicial Center affirming the value of such positions, the Conference approved the continuation of the three positions, and expansion to other circuits. Also, because of the current fiscal crisis, the Committee did not request, and the Judiciary did not seek, an increase in panel attorney hourly rates for FY 2012, notwithstanding the Judicial Conference policy to seek the full statutorily authorized rate.

The Committee supports cross-agency endeavors, such as the recent initiative with the Office of the Federal Detention Trustee to identify the costs to the courts and the CJA associated with the remote detention of clients, and ongoing dialogue with the Department of Justice regarding the time involved in reaching decisions not to seek the death penalty.

Our Defender Services Committee works closely with offices on capital and non-capital “mega-” cases to assure the most efficient use of resources in these high-cost representations

We also recognize that many cost-drivers, such as attorney waiting time (at detention facilities and in court) and unnecessary duplication costs for discovery, are best addressed at the local level. Our federal defenders have been responsive to the calls for belt-tightening, working with the Committee and the Office of Defender Services (ODS) to develop and implement cost containment and reduction measures. Our CJA panel attorney representatives are also engaged in the process and participate in local efforts to address cost-drivers. We have frozen defender staffing and cancelled training and administrative conferences for panel attorneys and federal defender organizations in an effort to adjust to current fiscal challenges.

        Earlier this fiscal year, payments to CJA panel attorneys were suspended for a brief period. Why did the suspensions occur and are attorneys now being paid?

The suspensions resulted from the effects of a series of continuing resolutions in lieu of fiscal year funding for the Judiciary (and the rest of the federal government). Every effort was made by the Judiciary to minimize the length of time the suspensions lasted, to make the payments as soon as possible after the funding became available, and to keep the panel attorneys and the courts informed. The federal criminal justice system relies heavily on appointments to panel attorneys, and I’d like to take this opportunity to express our gratitude for their service. At our Committee meeting in June, one member described his district’s “Panel Appreciation Day,” a reception hosted by the chief judges of the circuit court of appeals and the district court. We commend that idea to other districts. The hourly rate panel attorneys receive is not yet funded at the full statutorily authorized amount and has always been well below usual and customary fees for legal services. An appreciation event can provide a small, but significant, non-monetary recognition of their commitment to equal access to justice. As financial pressures continue, I hope that there will be continued recognition of our reliance on panel attorneys to ensure that fair compensation is paid for their critically necessary services.

Do all federal districts have federal defender offices? What is in place in districts where there are no FDOs to provide representation?

With the approved opening this year of a new organization in the Northern District of Alabama, 91 of the 94 districts will be served by a federal defender organization. The Committee and the Judicial Conference of the United States have long been in favor of establishing a defender organization in every district having the requisite number of cases (one of the three remaining districts does not meet that number). Federal defenders are rightfully viewed as a key component of the system for delivering effective defense services. Defender organizations play an important institutional role, working with their courts and panel attorneys to raise the overall quality of representation in their districts. In those districts without a defender, Defender Services provides funding for a “CJA Resource Counsel,” a private attorney who can provide consultative services and attempt to fill the training needs in a district. Obviously, they cannot totally substitute for a fully funded and functioning defender organization.

You mentioned restrictions on FDO hiring? What has been the effect?

Hiring has been, and continues to be, severely restricted. Nationally, FDOs are being held to the levels of on-board staff as of December 2010, and thus individual offices can no longer be assured that they can fill positions vacated by departing staff, much less hire new staff required by increasing local workloads. To maintain the 2010 level nationally, decisions are made by ODS as to which vacancies can be filled, working with and receiving the advice and assistance of a newly formed advisory panel of federal defenders. We are starting to see the adverse effects of these restrictions. One large, high-volume office recently experienced a 50 percent increase in caseload which is being absorbed by overworked staff with no immediate likelihood of additional help to bring caseloads back to a manageable level. In another district, an authorized branch office cannot be opened due to lack of staff as a result of fiscal constraints.

There is a fear that the quality of representation will be adversely affected by these staffing shortages. Recently, an assistant federal defender’s investigation resulted in a court finding that the client had derivative citizenship, which was a complete defense to the charge. That kind of investigation takes time, and it is exactly the kind of work professional ethics and evolving case law demands. As part of our cost-containment efforts, we continue to concentrate on maximizing the effective use of our resources, including personnel.

You’ve been on the Committee since 2002 and chair since 2008. What do you view as the most significant accomplishments during your time on the Committee and as chair?

Having been on the Committee for almost a decade, I have been able to see many goals reach fruition. Since 2002, the Defender Services program has promoted the establishment of defender offices in eight more districts, which, as I mentioned, will bring the total districts served by an FDO to 91. When I joined the Committee in 2002, the panel attorney rate was $90 an hour for non-capital cases. The Judicial Conference supported our Committee’s position that the rate should be increased to the full statutorily authorized amount, and while we have not reached that, the rate has incrementally increased and is now $125 an hour.

As part of our cost-containment efforts, we continue to concentrate on maximizing the effective use of our resources, including personnel.

The Committee has long been committed to fiscal responsibility, and during my time on the Committee, we have worked to create processes to contain and reduce expenditures. Examples of this include the creation of a case-budgeting process to contain the cost in the most expensive cases—death penalty, capital habeas, and non-capital “mega-cases.” In 2003, the Committee recommended, and the Judicial Conference approved, CJA Guidelines for case budgeting in those “mega-cases,” mirroring those already in place for capital cases. And in 2007, we launched the case budgeting pilot project previously mentioned.

One of the challenges that we have faced as a program is to try to keep abreast of the rapid technological advances in the practice of law. During my tenure on the Committee, I have seen great progress on this front. The development of litigation support strategies for both federal defenders and CJA panel attorneys, which were approved by the Committee in June 2010, were directed both at leveling the playing field between the United States Attorney’s offices and the defenders and panel attorneys, and at affording panel attorneys access to technology similar to that available to assistant federal defenders. I am sure this will continue to be a challenge for the Committee in the future.

The Committee also has focused on IT projects that benefit panel attorneys and court personnel. The National Voucher Training Program launched, as part of its implementation, an online reference tool that is available to the courts and to panel attorneys on www.uscourts.gov. This tool includes information on the policies related to voucher processing, and other important information about available resources. An ongoing project that has been a priority for the Committee is the electronic CJA vouchering project. While this will not be completed during my tenure, it is well on its way, and I consider its progress an accomplishment of this Committee.

Finally, the Committee has continued to be mindful of the importance of training in the provision of quality representation. ODS Training Branch, with the support and participation of the Committee, has responded to constant training needs by tailoring programs to identified need areas, such as appellate writing, sentencing advocacy, and, most recently, a trial skills academy. The Defender Services programs are highly successful and exceedingly well regarded for the quality of their content.