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Chapter 6, § 660: Authorization and Payment for Investigative, Expert, and Other Services in Capital Cases

Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 6: Federal Death Penalty and Capital Habeas Corpus Representations

§ 660.10 In General
§ 660.20 Limitations On Payment for Investigative, Expert, and Other Services
§ 660.30 Consulting Services
§ 660.40 Interim Payments to Service Providers
§ 660.50 Forms
§ 660.60 Timely Review of Vouchers

§ 660 Authorization and Payment for Investigative, Expert, and Other Services in Capital Cases

§ 660.10 In General

§ 660.10.10 Cases Commenced After April 24, 1996 (Post-AEDPA)

(a) With respect to federal death penalty cases and federal capital habeas corpus proceedings commenced, and appellate proceedings in which an appeal is perfected, on or after April 24, 1996, upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, the court should authorize the defendant's attorneys to obtain such services.

(b) No ex parte request for investigative, expert, or other services in such cases may be considered unless a proper showing is made by counsel concerning the need for confidentiality.

§ 660.10.20 Cases Commenced Before April 24, 1996 (Pre-AEDPA)

For capital cases commenced, and appellate proceedings in which an appeal was perfected, before April 24, 1996, according to 21 U.S.C. § 848(q)(9) before that provision's amendment by the AEDPA, upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the presiding judicial officer will authorize the defendant's counsel to obtain such services on behalf of the defendant.

§ 660.10.30 All Capital Cases

Upon a finding that timely procurement of necessary investigative, expert, or other services could not await prior authorization, the presiding judicial officer may authorize such services nunc pro tunc consistent with § 310.20.30(b).

§ 660.10.40 Applicability of Chapter 3 Guidelines

Except as otherwise specified in § 660, the provisions set forth in the Guide, Vol 7A, Ch 3, including § 310.20.30, are applicable to the authorization and payment for investigative, expert, and other services in capital cases.

§ 660.20 Limitations On Payment for Investigative, Expert, and Other Services

§ 660.20.10 Inapplicability of Compensation Maximums

For all capital cases, the compensation maximum amounts for investigative, expert, and other services set forth in the Guide, Vol 7A, § 310.20.10 are inapplicable.

§ 660.20.15 Engaging Relatives for Compensable Services

(a) Prior to engaging any relative (as the term is defined in 5 U.S.C. § 3110) to perform CJA compensable services, other than as associate counsel in the same law firm (see: Guide, Vol 7A, § 620.10.10(c)), counsel should first provide notification of the relationship and potential services to the presiding judicial authority.

(b) The court may, in the interest of justice, and upon finding that timely procurement of necessary services could not await prior notification, approve payment for such services up to the dollar threshold for obtaining services without prior authorization under 18 U.S.C. § 3006A(e)(2) and the CJA Guidelines (Guide, Vol 7A, § 310.20.30).

§ 660.20.20 Cases Commenced After April 24, 1996 (Post-AEDPA)

(a) With respect to federal death penalty cases and federal capital habeas corpus proceedings commenced, and appellate proceedings in which an appeal is perfected, on or after April 24, 1996, under 18 U.S.C. § 3599(g)(2), the fees and expenses for investigative, expert, and other services are limited to $7,500 in any case unless:

(1) payment in excess of that amount is certified by the court, or U.S. magistrate judge if the services were rendered in connection with a case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration; and

(2) the amount of the excess payment is approved by the chief judge of the circuit (or an active or senior circuit judge to whom the chief judge has delegated this authority).

(b) The $7,500 limit applies to the total payments for investigative, expert, and other services in a case, not to each service individually.

(c) Once payments for investigative, expert, and other services total $7,500, then additional payments must be approved by the chief judge of the circuit (or an active or senior circuit judge to whom the chief judge has delegated this authority). Accordingly, the court will monitor all payments for investigative, expert, and other services.

(d) If it can be anticipated that the payments for investigative, expert, and other services will exceed the statutory maximum, advance approval should be obtained from the court and the chief judge of the circuit (or an active or senior circuit judge to whom the chief judge has delegated this authority). See: Guide, Vol 7A, Appx 3A (Sample Request for Advance Authorization for Investigative, Expert, or Other Services).

(e) Rather than submitting multiple requests, where possible, courts should submit the expert, investigative, and other services portion of the approved case budget to the chief judge of the circuit (or designee of the chief judge) for advance approval. See: § 640.

§ 660.20.30 Cases Commenced Before April 24, 1996 (Pre-AEDPA)

For capital cases commenced, and appellate proceedings in which an appeal was perfected, before April 24, 1996, according to 21 U.S.C. § 848(q)(10) before that provision's amendment by the AEDPA, the presiding judicial officer will set compensation for investigative, expert, and other services in an amount reasonably necessary to obtain such services, without regard to CJA or AEDPA maximum limitations.

§ 660.30 Consulting Services

(a) Where necessary for adequate representation, 18 U.S.C. § 3006A(e) and 18 U.S.C. § 3599(f) authorize the reasonable employment and compensation of expert attorney consultants to provide "light consultation" services to appointed and pro bono attorneys in federal capital habeas corpus cases and in federal death penalty cases in such areas as:

  • records completion;
  • determination of need to exhaust state remedies;
  • identification of issues;
  • review of draft pleadings and briefs; and
  • authorization process to seek the death penalty.

(b) "Light consultation" services are those that a lawyer in private practice would typically seek from another lawyer who specializes in a particular field of law, as opposed to "heavy consultation" services, which include, but are not limited to:

  • reviewing records;
  • researching case-specific legal issues;
  • drafting pleadings;
  • investigating claims; and
  • providing detailed case-specific advice to counsel, if such tasks take a substantial amount of time.

(c) An expert attorney consultant will not be paid an hourly rate exceeding that which an appointed counsel could be authorized to be paid.

(d) Courts may wish to require that an appointed attorney who seeks to have the court authorize the services of an expert attorney consultant confer with the federal defender, or the AO's Defender Services Office if there is no federal defender in the district or if the federal defender has a conflict of interest, regarding who could serve as an expert attorney consultant.

§ 660.40 Interim Payments to Service Providers

§ 660.40.10 In General

It is urged that the court or U.S. magistrate judge permit interim payment of compensation in capital cases.

§ 660.40.20 Cases Commenced After April 24, 1996 (Post-AEDPA)

(a) A special set of procedures for effecting interim payments, including a special memorandum order, must be used in these cases. These procedures and a sample memorandum order are set forth in the Guide, Vol 7A, Appx 3C (Procedures for Interim Payments to Service Providers in Capital Proceedings). For limitations on payment for investigative, expert, and other services with respect to federal death penalty cases and federal capital habeas corpus proceedings, see: § 660.20.20.

See also: the case budgeting techniques recommended in § 640.

(b) Other interim payment arrangements, which effectuate a balance between the interest in relieving service providers of financial hardships and the practical application of the statutorily imposed responsibility of the chief judge of the circuit to provide a meaningful review of claims for excess payment, may be devised in consultation with the AO's Defender Services Office.

§ 660.40.30 Cases Commenced Before April 24, 1996 (Pre-AEDPA)

A separate set of procedures for effecting interim payments, including a separate memorandum order, must be used in those cases. These procedures and sample memorandum order are set forth in the Guide, Vol 7A, Appx 3C (Procedures for Interim Payments to Service Providers in Capital Proceedings). For procedures governing federal death penalty cases and federal capital habeas corpus proceedings, see: § 660.20.30.

§ 660.50 Forms

Claims for compensation and reimbursement of expenses for investigative, expert, or other services in death penalty proceedings should be submitted on Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services).

§ 660.60 Timely Review of Vouchers

Absent extraordinary circumstances, judges should act upon claims for compensation for investigative, expert, or other services within 30 days of submission.

Chapter Appendices

Appx 6A: Recommendations Concerning the Cost and Quality of Defense Representation (Updated Spencer Report, September 2010) (pdf)

Last substantive revision (Transmittal 07-008) February 28, 2014
Last revised (updated case compensation maximums) January 26, 2016