United States District Court
For the Central District of Illinois
Criminal Justice Act Plan
I. Authority
Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, and
Guide to Judiciary Policy (Guide), Volume 7A, the judges of the United States District
Court for the Central District of Illinois adopt this Plan, as approved by the circuit,
for furnishing representation in federal court for any person financially unable to
obtain adequate representation in accordance with the CJA.
II. Statement of Policy
A. Objectives
The objectives of this Plan are:
1. to attain the goal of equal justice under the law for all persons;
2. to provide all eligible persons with timely appointed counsel
services that are consistent with the best practices of the legal
profession, are cost-effective, and protect the independence of
the defense function so that the rights of individual defendants
are safeguarded and enforced; and
3. to particularize the requirements of the CJA, the USA Patriot
Improvement and Reauthorization Act of 2005 (recodified at 18
U.S.C. § 3599), and Guide, Vol. 7A, in a way that meets the needs
of this district.
This Plan must therefore be administered so that those accused of a crime, or
otherwise eligible for services under the CJA, will not be deprived of the right to
counsel, or any element of representation necessary to an effective defense, due to
lack of financial resources.
B. Compliance
1. The court, its Clerk, the Federal Public Defender organization,
attorneys provided by a bar association or legal aid agency, and
private attorneys appointed under the CJA must comply with
Guide, Vol. 7A, approved by the Judicial Conference of the
United States or its Committee on Defender Services, and with
this Plan.
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2. The Court will ensure that a current copy of the CJA Plan is made
available on the Court’s website, and provided to CJA counsel
upon the attorney’s designation as a member of the CJA panel of
private attorneys (CJA Panel). The Federal Public Defender will
also ensure that a current copy of the CJA Plan is available on its
website.
III. Definitions
A. Representation
“Representation” includes counsel and investigative, expert, and other
services.
B. Appointed Attorney
“Appointed attorney” is an attorney designated to represent a
financially eligible person under the CJA and this Plan. Such attorneys
include private attorneys, the Federal Public Defender and staff
attorneys of the Federal Public Defender organization, and attorneys
provided by a bar association or legal aid agency.
C. eVoucher
“eVoucher” is the electronic voucher management system for court
appointed attorneys to use to submit fee and expense requests and for
judges and court staff to use to review and approve submitted claims.
IV. Determination of Eligibility for CJA Representation
A. Subject Matter Eligibility
1. Mandatory
Representation must be provided for any financially eligible
person who:
a. is charged with a felony or with a Class A misdemeanor;
b. is a juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. is charged with a violation of probation or supervised
release conditions;
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d. is under arrest, when such representation is required by
law;
e. is entitled to appointment of counsel in parole
proceedings;
f. is subject to a mental condition hearing under 18 U.S.C.
chapter 313;
g. is in custody as a material witness;
h. is seeking to set aside or vacate a death sentence under 28
U.S.C. § 2254 or § 2255;
i. is entitled to appointment of counsel in verification of
consent proceedings in connection with a transfer of an
offender to or from the United States for the execution of a
penal sentence under 18 U.S.C. § 4109;
j. is entitled to appointment of counsel under the Sixth
Amendment to the Constitution; or
k. faces loss of liberty in a case and federal law requires the
appointment of counsel.
2. Discretionary
Whenever a district judge or magistrate judge determines that
the interests of justice so require, representation may be provided
for any financially eligible person who:
a. is charged with a petty offense (Class B or C misdemeanor,
or an infraction) for which a sentence to confinement is
authorized;
b. is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255
other than to set aside or vacate a death sentence;
c. is charged with civil or criminal contempt and faces loss of
liberty;
d. has been called as a witness before a grand jury, a court,
the Congress, or a federal agency or commission which has
the power to compel testimony, and there is reason to
believe, either prior to or during testimony, that the
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witness could be subject to a criminal prosecution, a civil
or criminal contempt proceeding, or face loss of liberty;
e. has been advised by the United States attorney or a law
enforcement officer that they are the target of a grand jury
investigation;
f. is proposed by the United States attorney for processing
under a pretrial diversion program; or
g. is held for international extradition under 18 U.S.C.
chapter 209;
h. made a request for modification of a condition of probation
or supervised release which the Probation office denied;
i. is subject to conditions of probation or supervised release
and the Court, Probation Office, or United States
Attorney’s Office seeks a modification of said conditions.
3. Ancillary Matters
Representation may also be provided for financially eligible
persons in ancillary matters appropriate to the criminal
proceedings under 18 U.S.C. § 3006A(c). In determining whether
representation in an ancillary matter is appropriate to the
criminal proceedings, the court should consider whether such
representation is reasonably necessary:
a. to protect a constitutional right;
b. to contribute in some significant way to the defense of the
principal criminal charge;
c. to aid in preparation for the trial or disposition of the
principal criminal charge;
d. to enforce the terms of a plea agreement in the principal
criminal charge;
e. to preserve the claim of the CJA client to an interest in real
or personal property subject to civil forfeiture proceeding
under 18 U.S.C. § 983,19 U.S.C. § 1602, 21 U.S.C. § 881, or
similar statutes, which property, if recovered by the client,
may be considered for reimbursement under 18 U.S.C. §
3006A(f); or
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f. effectuate the return of real or personal property belonging
to the CJA client, which may be subject to a motion for
return of property under Fed. R. Crim. P. 41(g), which
property, if recovered by the client, may be considered for
reimbursement under 18 U.S.C. § 3006A(f).
B. Financial Eligibility
1. The determination of eligibility for representation under the CJA
is a judicial function to be performed by a federal judge after
making appropriate inquiries concerning the person's financial
condition.
2. The presiding judicial officer shall not require a defendant to
complete a financial affidavit until after counsel has been
appointed. The judicial officer may provisionally appoint counsel
for the purposes of assisting the defendant with the completion of
a financial affidavit. If after completion of the financial affidavit,
the judicial officer concludes the defendant is not eligible for the
appointment of counsel, the provisional appointment of counsel
shall cease.
3. The federal judge shall, in selecting and appointing counsel, either
designate the Federal Public Defender, CJA Panel attorney, or, in
death penalty habeas corpus cases, persons whose names are
submitted by the Federal Public Defender.
4. If, at any time after appointment, counsel obtains information that
a client is financially able to make payment, in whole or in part,
for legal or other services in connection with his or her
representation, and the source of the attorney's information is not
protected as a privileged communication, counsel shall advise the
Court.
V. Timely Appointment of Counsel
A. Timing of Appointment
Counsel must be provided to eligible persons:
1. when they first appear before a magistrate or district court judge;
or
2. when a judicial officer otherwise considers appointment of
counsel appropriate under the CJA and related statutes.
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B. Pretrial Service Interview
The Pretrial Services Interview shall occur after the appointment of
counsel. The interview shall be conducted at the courthouse with
counsel present and immediately following the defendant’s initial
appearance, unless some other time or place is agreed upon between the
U.S. Probation Office and counsel.
VI. Provision of Representational Services
A. Federal Public Defender and Private Counsel
This Plan provides for representational services by the federal public
defender organization and for the appointment and compensation of
private counsel from a CJA Panel list maintained by the court in cases
authorized under the CJA and related statutes.
B. Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the court.
C. Apportionment of Cases
Where practical and cost effective, private attorneys from the CJA Panel
will be appointed in a substantial proportion of the cases in which the
accused is determined to be financially eligible for representation under
the CJA. “Substantial” will usually be defined as a minimum of twenty-
five percent (25%) of the annual CJA appointments.
D. Number of Counsel
More than one attorney may be appointed in any case determined by
the court to be extremely difficult.
E. Capital Cases
Procedures for appointment of counsel in cases where the defendant is
charged with a crime that may be punishable by death, or is seeking to
vacate or set aside a death sentence in proceedings under 28 U.S.C. §§
2254 or 2255, are set forth in section XIV of this Plan.
VII. Federal Public Defender Organization
A. Establishment
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The Federal Public Defender’s Office for the Central District of Illinois is
established in this district under the CJA and is responsible for
rendering defense services on appointment throughout this district.
B. Standards
The Federal Public Defender organization must provide high quality
representation consistent with the best practices of the legal profession
and commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318 (1981)
(“‘Once a lawyer has undertaken the representation of an accused, the
duties and obligations are the same whether the lawyer is privately
retained, appointed, or serving in a legal aid or defender program.’”
(quoting ABA Standards for Criminal Justice section 4-3.9 (2d ed.
1980))).
C. Workload
The Federal Public Defender Organization will continually monitor the
workloads of its staff to ensure high quality representation for all clients.
D. Professional Conduct
The Federal Public Defender Organization must conform to the highest
standards of professional conduct, including but not limited to the
Illinois Rules of Professional Conduct and the Code of Conduct for
Federal Public Defender Employees.
E. Private Practice of Law
Neither the Federal Public Defender nor any defender employee may
engage in the private practice of law except as authorized by the Federal
Public Defender Code of Conduct.
F. Supervision of Defender Organization
The Federal Public Defender will be responsible for the supervision and
management of the Federal Public Defender Organization. Accordingly,
the Federal Public Defender will be appointed in all cases assigned to
that organization for subsequent assignment to staff attorneys at the
discretion of the Federal Public Defender.
G. Training
The Federal Public Defender will assess the training needs of Federal
Public Defender staff and, in coordination with the CJA Panel Attorney
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District Representative, the training needs of the local panel attorneys,
and provide training opportunities and other educational resources.
VIII. CJA Panel of Private Attorneys
A. Establishment of the CJA Panel Committee
1. A CJA Panel Committee (“CJA Committee”) will be established
by the Court in consultation with the Federal Public Defender.
The CJA Committee will consist of the chief district court judge,
one magistrate judge, the federal public defender, and the CJA
Panel Attorney District Representative (PADR). The chief district
judge shall be the chairperson. There shall be a sub-panel in each
division appointed by the chief district judge consisting of the
presiding district judge, one magistrate judge, one assigned
assistant federal public defender for the division, and one
attorney who is willing to serve on the CJA panel. The presiding
district judge shall be the chairperson.
2. The federal public defender or their representative, and the
district’s PADR are permanent members of the CJA Committee.
3. The CJA Committee will meet at least once a year and at any time
the court asks the Committee to consider an issue.
B. Duties of the CJA Committee
1. Membership
Examine the qualifications of applicants for membership on the
CJA Panel as recommended by each sub-panel and recommend
to the chief judge the approval of those attorneys who are
deemed qualified and the rejection of the applications of those
attorneys deemed unqualified.
2. Recruitment
Engage in recruitment efforts to establish a diverse panel and
ensure that all qualified attorneys are encouraged to participate
in the furnishing of representation in CJA cases.
3. Annual Report
Review the operation and administration of the CJA Panel over
the preceding year, and recommend any necessary or
appropriate changes to the chief judge concerning:
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a. the size of the CJA Panel;
b. the recruitment of qualified and diverse attorneys as
required and set forth in this plan; and
4. recurring issues or difficulties encountered by panel members or
their CJA clients.
5. Removal
Recommend to the chief judge the removal of any CJA panel
member who:
a. fails to satisfactorily fulfill the requirements of CJA panel
membership during their term of service, including the
failure to provide high quality representation to CJA
clients, or
b. has engaged in other conduct such that his or her
continued service on the CJA Panel is inappropriate.
6. Training
Assist the Federal Public Defender office in providing training
for the CJA Panel on substantive and procedural legal matters
affecting representation of CJA clients.
7. Voucher Review
If requested by a district judge, review and make
recommendations on the processing and payment of CJA
vouchers in those cases where the court, for reasons other than
mathematical errors, is considering authorizing payment for less
than the amount of compensation claimed by CJA counsel. The
judge will, at the time the voucher is submitted to the CJA
Committee, provide a statement describing questions or
concerns they have with the voucher. Counsel will be notified of
the potential voucher reduction and given the opportunity to
provide information or documentation relevant to the voucher
and concerns raised by the judge. The CJA Committee will issue
a written recommendation to the judge.
8. Mentoring
Appoint experienced CJA panel members to serve on a
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subcommittee to create and administer a mentoring program
designed to identify and help prepare viable candidates to qualify
for consideration for appointment to the CJA Panel. Experienced
members of the criminal defense bar who have practiced
extensively in the federal courts will be selected to serve as
mentors. The subcommittee will review the mentee applications,
make recommendations concerning their participation in the
mentoring program, identify appropriate cases for the mentoring
program, evaluate the success of the mentoring program, and
provide guidance to the mentors.
IX. Establishment of a CJA Panel
A. Approval of CJA Panel
1. The existing, previously established panel of attorneys who are
eligible and willing to be appointed to provide representation
under the CJA is hereby recognized.
2. The chair of the CJA Committee will approve attorneys for
membership on the CJA Panel after receiving recommendations
from the CJA Committee.
B. Size of CJA Panel
1. The size of the CJA Panel will be determined by the CJA
Committee based on the caseload and activity of the panel
members, subject to review by the court.
2. The CJA Panel must be large enough to provide a sufficient
number of experienced attorneys to handle the CJA caseload, yet
small enough so that CJA panel members will receive an adequate
number of appointments to maintain their proficiency in federal
criminal defense work enabling them to provide high quality
representation consistent with the best practices of the legal
profession and commensurate with those services rendered when
counsel is privately retained.
C. Qualifications and Membership on the CJA Panel
1. Application
Application forms for membership on the CJA Panel are available
on the Federal Public Defender’s website, ilc.fd.org, at the “CJA
RESOURCES” tab.
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2. Equal Opportunity
All qualified attorneys are encouraged to participate in the
furnishing of representation in CJA cases.
3. Eligibility
a. Applicants for the CJA Panel must be admitted to practice
in the Central District of Illinois.
b. Applicants must maintain a primary, satellite, or shared
office in this district, or, for CJA Panel attorneys in the
Rock Island Division, in the Southern District of Iowa
c. Applicants must possess strong litigation skills and
demonstrate proficiency with the federal sentencing
guidelines, federal sentencing procedures, the Bail Reform
Act, the Federal Rules of Criminal Procedure, and the
Federal Rules of Evidence.
d. Applicants must have significant experience representing
persons charged with serious criminal offenses and
demonstrate a commitment to the defense of people who
lack the financial means to hire an attorney.
e. Attorneys who do not possess the experience set forth
above but believe they have equivalent other experience
are encouraged to apply and set forth in writing the details
of that experience for the CJA Committee’s consideration.
4. Appointment to CJA Panel
After considering the recommendations of the sub-panels and the
CJA Committee, the chief judge will appoint or reappoint
attorneys to the CJA Panel.
5. Due to the highly complex and demanding nature of capital and
habeas corpus cases, special procedures will be followed for the
eligibility and appointment of counsel in such cases. See Section
XIV of this Plan.
6. CJA Training Panel
The CJA Committee may establish a “CJA Training Panel”
consisting of attorneys who do not have the experience required
for membership on the CJA Panel. Training Panel members may
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be assigned, by the Court, to assist members of the CJA Panel in a
“second chair” capacity. Training Panel members are not eligible
to receive appointments independently, and shall not be eligible
to receive compensation for their services in assisting CJA Panel
members without the approval of the presiding district judge.
Prior service on the CJA Training Panel is not a requirement for
membership on the CJA Panel, nor will service on the Training
Panel guarantee admission of an attorney to the CJA Panel.
7. Reappointment of CJA Panel Members
a. A member of the CJA Panel who wishes to be considered
for reappointment must complete an “Annual Certification
for Continued Membership on the CJA Panel” by January
1st of each calendar year. The form is available on the
Federal Public Defender’s website, ilc.fd.org, under the
“CJA RESOURCES” tab. Failure to submit an Annual
Certification form will result in the member being
removed from the CJA Panel.
b. The CJA Committee will solicit input concerning the
quality of representation provided by lawyers seeking
reappointment.
c. The CJA Committee also will consider how many cases the
CJA panel member has accepted and declined during the
review period, whether the member has participated in
training opportunities, whether the member has been the
subject of any complaints, and whether the member
continues to meet the prerequisites and obligations of CJA
panel members as set forth in this Plan.
8. Removal from the CJA Panel
a. Mandatory removal
Any member of the CJA Panel who is suspended or
disbarred from the practice of law by the state court before
whom such member is admitted, or who is suspended or
disbarred from this court or any federal court, will be
removed from the CJA Panel immediately.
b. Automatic disciplinary review
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The CJA Committee will conduct an automatic
disciplinary review of any CJA panel member against
whom any licensing authority, grievance committee, or
administrative body has taken action, or when a finding of
probable cause, contempt, sanction, or reprimand has been
issued against the panel member by any state or federal
court.
c. Complaints
(i) Initiation
A complaint against a panel member may be
initiated by the CJA Committee, a judge, another
panel member, a defendant, or a member of the
Federal Public Defender office. A complaint need
not follow any particular form, but it must be in
writing and state the alleged deficiency with
specificity. Any complaint should be directed to the
CJA Committee, which will determine whether
further investigation is necessary.
(ii) Notice
When conducting an investigation, the CJA
Committee will notify the panel member of the
specific allegations.
(iii) Response
A panel member subject to investigation may
respond in writing and appear, if so directed, before
the CJA Committee or its subcommittee.
(iv) Protective action
Prior to disposition of any complaint, the CJA
Committee may recommend temporary suspension
or removal of the panel member from any pending
case, or from the panel, and may take any other
protective action that is in the best interest of the
client or the administration of this Plan.
(v) Review and recommendation
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After investigation, the CJA Committee may
recommend dismissing the complaint, or
recommend appropriate remedial action, including
removing the attorney from the panel, limiting the
attorney’s participation to particular types or
categories of cases, directing the attorney to
complete specific CLE requirements before
receiving further panel appointments, limiting the
attorney’s participation to handling cases that are
directly supervised or overseen by another panel
member or other experienced practitioner, or any
other appropriate remedial action.
(vi) Final disposition by the court
The CJA Committee will forward its
recommendation to the chief judge for consideration
and final disposition.
(vii) Confidentiality
Unless otherwise directed by the court, any
information acquired concerning any possible
disciplinary action, including any complaint and
any related proceeding, will be confidential.
(viii) None of these procedures create a property interest
in being on or remaining on the CJA Panel.
d. Notification
The Federal Public Defender will be immediately notified
when any member of the CJA Panel is removed or
suspended.
X. CJA Panel Attorney Appointment in Non-Capital Cases
A. Appointment List
The Federal Public Defender office will maintain a current list of all
attorneys included on the CJA Panel, with current office addresses,
email addresses, and telephone numbers, as well as a statement of
qualifications and experience. The Federal Public Defender shall
provide the Court with an updated list when changes are made.
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B. Appointment Procedures
1. The Court is responsible for overseeing the appointment of cases
to panel attorneys. The Court will maintain a record of panel
attorney appointments and, when appropriate, data reflecting the
apportionment of appointments between attorneys from the
Federal Public Defender office and panel attorneys.
2. Appointment of cases to CJA panel members will ordinarily be
made on a rotational basis. In a complex or otherwise difficult
case, the Court may appoint counsel outside of the normal
rotation to ensure the defendant has sufficiently experienced
counsel.
3. Under special circumstances the court may appoint a member of
the bar of the court who is not a member of the CJA Panel. Such
special circumstances may include cases in which the court
determines that the appointment of a particular attorney is in the
interests of justice, judicial economy, or continuity of
representation, or for any other compelling reason. It is not
anticipated that special circumstances will arise often, and the
procedures set forth in the Plan are presumed to be sufficient in
the vast majority of cases in which counsel are to be appointed.
Appointments made under this section will be reported to the
CJA Committee.
4. Unless otherwise impracticable, CJA panel attorney(s) must be
available to represent defendant(s) at the same stage of the
proceedings as is the Federal Public Defender.
XI. Duties of CJA Panel Members
A. Standards and Professional Conduct
1. CJA panel members must provide high quality representation
consistent with the best practices of the legal profession and
commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“‘Once a lawyer has undertaken the representation of an
accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or
defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980))).
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2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, including but not limited to the
Illinois Rules of Professional Conduct.
3. CJA panel members must notify within 30 days the chair of the
CJA Committee when any licensing authority, grievance
committee, or administrative body has taken action against them,
or when a finding of contempt, sanction, or reprimand has been
issued against the panel member by any state of federal court.
B. Training and Continuing Legal Education
1. Attorneys on the CJA Panel are expected to remain current with
developments in federal criminal defense law, practice, and
procedure, including the Recommendation for Electronically
Stored Information (ESI) Discovery Production in Federal
Criminal Cases.
2. Attorneys on the CJA Panel are expected to attend trainings
sponsored by the Federal Public Defender.
3. Attorneys on the CJA Panel will be guided in their practice by the
Federal Adaptation of the National Legal Aid and Defender
Association Performance Guidelines for Criminal Defense
Representations.
4. CJA panel members must attend at least four continuing legal
education hours relevant to federal criminal practice annually.
5. Failure to comply with these training and legal education
requirements may be grounds for removal from the CJA Panel.
C. Facilities and Technology Requirements
1. CJA panel attorneys must have facilities, resources, and
technological capability to effectively and efficiently manage
assigned cases.
2. CJA panel attorneys must comply with the requirements of
electronic filing and eVoucher.
3. CJA panel attorneys must know and abide by procedures related
to requests for investigative, expert, and other services.
D. Continuing Representation
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Once counsel is appointed under the CJA, counsel will continue the
representation until the matter, including appeals (unless provided
otherwise by the Seventh Circuit’s CJA plan) or review by certiorari, is
closed; or until substitute counsel has filed a notice of appearance; or
until an order is entered allowing or requiring the person represented
to proceed pro se; or until the appointment is terminated by court
order.
E. Miscellaneous
1. Case budgeting
In non-capital representations of unusual complexity that are
likely to become extraordinary in terms of cost, the court may
require development of a case budget consistent with Guide, Vol.
7A, Ch. 2, §§ 230.26.10–20.
2. No receipt of other payment
Appointed counsel may not require, request, or accept any
payment or promise of payment or any other valuable
consideration for representation under the CJA, unless such
payment is approved by order of the court.
3. Redetermination of need
If at any time after appointment, counsel has reason to believe
that a party is financially able to obtain counsel, or make partial
payment for counsel, and the source of counsel’s information is
not protected as a privileged communication, counsel will advise
the court.
XII. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
Providing fair compensation to appointed counsel is a critical
component of the administration of justice. CJA panel attorneys must
be compensated for time expended in court and time reasonably
expended out of court, and reimbursed for expenses reasonably
incurred.
B. Voucher cuts should be limited to:
1. Mathematical errors;
2. Instances in which work billed was not compensable;
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3. Instances in which work was not undertaken or completed; and
4. Instances in which the hours billed are clearly in excess of what
was reasonably required to complete the task
C. Payment Procedures
1. Claims for compensation must be submitted on the appropriate
CJA form through the court’s eVoucher system.
2. Claims for compensation should be submitted no later than 45
days after final disposition of the case, unless good cause is
shown.
3. The Court or their designee will review the claim for
mathematical and technical accuracy and for conformity with
Guide, Vol. 7A and, if correct, will forward the claim for
consideration and action by the presiding judge.
4. Absent extraordinary circumstances, the court should act on CJA
compensation claims within 30 days of submission, and vouchers
should not be delayed or reduced for the purpose of diminishing
Defender Services program costs in response to adverse financial
circumstances.
5. Except in cases involving mathematical corrections, no claim for
compensation submitted for services provided under the CJA will
be reduced without affording counsel notice and the opportunity
to be heard.
6. The court, when contemplating reduction of a CJA voucher for
other than mathematical reasons, may refer the voucher to the
CJA Committee or the Federal Public Defender for review and
recommendation before final action on the claim is taken.
7. Notwithstanding the procedure described above, the court may,
in the first instance, contact appointed counsel to inquire
regarding questions or concerns with a claim for compensation. In
the event that the matter is resolved to the satisfaction of the court
and CJA panel member, the claim for compensation need not be
referred for review and recommendation.
D. Independent Review Process
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1. The District shall create an independent review process for panel
attorneys who wish to challenge any reductions to vouchers that
have been made by the presiding judge.
2. Any challenged reduction should be subject to review consistent
with this independent review process.
3. All processes implemented by the District shall be consistent with
the statutory requirements for fixing compensation and
reimbursement to be paid under 18 U.S.C. 3006A(d).
XIII. Investigative, Expert, and Other Services
A. Financial Eligibility
Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for an adequate defense may
request such services in an ex parte application to the court as provided
in 18 U.S.C. § 3006A(e)(1), regardless of whether counsel is appointed
under the CJA. Upon finding that the services are necessary, and that
the person is financially unable to obtain them, the court must
authorize counsel to obtain the services.
B. Applications
Requests for authorization of funds for investigative, expert, and other
services must be submitted in an ex parte application to the court (using
the court’s eVoucher system) and must not be disclosed except with
the consent of the person represented or as required by law or Judicial
Conference policy.
C. Compliance
Counsel must comply with Judicial Conference policies set forth in
Guide, Vol. 7A, Ch. 3.
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XIV. Appointment of Counsel and Case Management in CJA Capital Cases
A. Applicable Legal Authority
The appointment and compensation of counsel in capital cases and
the authorization and payment of persons providing investigative,
expert, and other services are governed by 18 U.S.C. §§ 3005, 3006A,
and 3599, and Guide, Vol. 7A, Ch. 6.
B. General Applicability and Appointment of Counsel Requirements
1. Unless otherwise specified, the provisions set forth in this
section apply to all capital proceedings in the federal courts,
whether those matters originated in a district court (federal
capital trials) or in a state court (habeas proceedings under 28
U.S.C. § 2254). Such matters include those in which the death
penalty may be or is being sought by the prosecution, motions
for a new trial, direct appeal, applications for a writ of certiorari
to the Supreme Court of the United States, all post-conviction
proceedings under 28 U.S.C. §§ 2254 or 2255 seeking to vacate
or set aside a death sentence, applications for stays of execution,
competency proceedings, proceedings for executive or other
clemency, and other appropriate motions and proceedings.
2. Any person charged with a crime that may be punishable by
death who is or becomes financially unable to obtain
representation is entitled to the assistance of appointed counsel
throughout every stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for
new trial, appeals, applications for writ of certiorari to the
Supreme Court of the United States, and all available post-
conviction processes, together with applications for stays of
execution and other appropriate motions and procedures,
competency proceedings, and proceedings for executive or
other clemency as may be available to the defendant. See 18
U.S.C. § 3599(e).
3. Qualified counsel must be appointed in capital cases at the
earliest possible opportunity.
4. Given the complex and demanding nature of capital cases,
where appropriate, the court will utilize the expert services
available through the Administrative Office of the United States
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Courts (AO), Defender Services Death Penalty Resource
Counsel projects (“Resource Counsel projects”) which include:
(1) Federal Death Penalty Resource Counsel and Capital
Resource Counsel Projects (for federal capital trials), (2) Federal
Capital Appellate Resource Counsel Project, (3) Federal Capital
Habeas § 2255 Project, and (4) National and Regional Habeas
Assistance and Training Counsel Projects (§ 2254). These
counsel are death penalty experts who may be relied upon by
the court for assistance with selection and appointment of
counsel, case budgeting, and legal, practical, and other matters
arising in federal capital cases.
5. The Federal Public Defender should promptly notify and
consult with the appropriate Resource Counsel projects about
potential and actual federal capital trial, appellate, and habeas
corpus cases, and consider their recommendations for
appointment of counsel.
6. In appointing counsel in capital cases, judges should consider
and give due weight to the recommendations made by federal
defenders and resource counsel and articulate reasons for not
doing so.
7. The presiding judge may appoint an attorney furnished by a
state or local public defender organization or legal aid agency or
other private, non-profit organization to represent a person
charged with a capital crime or seeking federal death penalty
habeas corpus relief provided that the attorney is fully
qualified. Such appointments may be in place of, or in addition
to, the appointment of a federal defender organization or a CJA
panel attorney or an attorney appointed pro hac vice. See 18
U.S.C. § 3006A(a)(3).
8. All attorneys appointed in federal capital cases must be well
qualified, by virtue of their training, commitment, and
distinguished prior capital defense experience at the relevant
stage of the proceeding, to serve as counsel in this highly
specialized and demanding litigation.
9. All attorneys appointed in federal capital cases must have
sufficient time and resources to devote to the representation,
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taking into account their current caseloads and the
extraordinary demands of federal capital cases.
10. All attorneys appointed in federal capital cases should comply
with the American Bar Association’s 2003 Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases (Guidelines 1.1 and 10.2 et seq.), and the 2008
Supplementary Guidelines for the Mitigation Function of
Defense Teams in Death Penalty Cases.
11. All attorneys appointed in federal capital cases should consult
regularly with the appropriate Resource Counsel projects.
12. There should be no formal or informal non-statutory budgetary
caps on capital cases, whether in a capital trial, direct appeal, or
habeas matter.
13. All capital cases should be budgeted with the assistance of case-
budgeting attorneys and/or resource counsel where
appropriate.
14. Questions about the appointment and compensation of counsel
and the authorization and payment of investigative, expert, and
other service providers in federal capital cases should be
directed to the AO Defender Services Office, Legal and Policy
Division Duty Attorney at 202-502-3030 or via email at
[email protected].
C. Appointment of Trial Counsel in Federal Death-Eligible Cases
1. General Requirements
a. Appointment of qualified capital trial counsel must
occur no later than when a defendant is charged with a
federal criminal offense where the penalty of death is
possible. See 18 U.S.C. § 3005.
b. To protect the rights of an individual who, although
uncharged, is the subject of an investigation in a federal
death-eligible case, the court may appoint capitally-
qualified counsel upon request, consistent with Sections
C.1, 2, and 3 of these provisions.
c. At the outset of every capital case, the court must
appoint two attorneys, at least one of whom meets the
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qualifications for “learned counsel” as described below.
If necessary for adequate representation, more than two
attorneys may be appointed to represent a defendant in a
capital case. See 18 U.S.C. § 3005.
d. When appointing counsel, the judge must consider the
recommendation of the Federal Public Defender, who
will consult with Federal Death Penalty Resource
Counsel to recommend qualified counsel.
e. In appointing counsel, judge should give due weight to
the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
f. To effectuate the intent of 18 U.S.C. § 3005 that the
Federal Public Defender’s recommendation be provided
to the court, the judge should ensure the Federal Public
defender has been notified of the need to appoint
capitally-qualified counsel.
g. Reliance on a list for appointment of capital counsel is
not recommended because selection of trial counsel
should account for the particular needs of the case and
the defendant, and be based on individualized
recommendations from the Federal Public Defender in
conjunction with the Federal Death Penalty Resource
Counsel and Capital Resource Counsel projects.
h. Out-of-district counsel, including federal defender
organization staff, who possess the requisite expertise
may be considered for appointment in capital trials to
achieve high quality representation together with cost
and other efficiencies.
i. In evaluating the qualifications of proposed trial counsel,
consideration should be given to their commitment to
the defense of capital cases, their current caseload
including other capital cases, and their willingness to
effectively represent the interests of the client.
2. Qualifications of Learned Counsel
a. Learned counsel must either be a member of this
district’s bar or be eligible for admission pro hac vice
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based on his or her qualifications. Appointment of
counsel from outside the jurisdiction is common in
federal capital cases to achieve cost and other efficiencies
together with high quality representation.
b. Learned counsel must meet the minimum experience
standards set forth in 18 U.S.C. §§ 3005 and 3599.
c. 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.
d. “Distinguished prior experience” contemplates
excellence, not simply prior experience. Counsel with
distinguished prior experience should be appointed even
if meeting this standard requires appointing counsel
from outside the district where the matter arises.
e. The suitability of learned counsel should be assessed
with respect to the particular demands of the case, the
stage of the litigation, and the defendant.
f. Learned counsel must be willing and able to adjust other
caseload demands to accommodate the extraordinary
time required by the capital representation.
g. Learned counsel should satisfy the qualification
standards endorsed by bar associations and other legal
organizations regarding the quality of representation in
capital cases.
3. Qualifications of Second and Additional Counsel
a. Second and additional counsel may, but are not required
to, satisfy the qualifications for learned counsel, as set
forth above.
b. Second and additional counsel must be well qualified, by
virtue of their distinguished prior criminal defense
experience, training and commitment, to serve as
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counsel in this highly specialized and demanding
litigation.
c. Second and additional counsel must be willing and able
to adjust other caseload demands to accommodate the
extraordinary time required by the capital
representation.
d. The suitability of second and additional counsel should
be assessed with respect to the demands of the
individual case, the stage of the litigation, and the
defendant.
D. Appointment and Qualifications of Post-Conviction Counsel in
Federal Death Penalty Cases (28 U.S.C. § 2255)
1. A financially eligible person seeking to vacate or set aside a
death sentence in proceedings under 28 U.S.C. § 2255 is entitled
to appointment of fully qualified counsel. See 18 U.S.C. §
3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at
least two attorneys.
3. In light of the accelerated timeline applicable to capital § 2255
proceedings, prompt appointment of counsel is essential.
Wherever possible, appointment should take place prior to the
denial of certiorari on direct appeal by the United States
Supreme Court.
4. When appointing counsel in a capital § 2255 matter, the court
should consider the recommendation of the Federal Public
Defender, who will consult with the Federal Capital Habeas §
2255 Project.
5. In appointing post-conviction counsel, judges should give due
weight to the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
6. Out-of-district counsel, including federal defender organization
staff, who possess the requisite expertise may be considered for
appointment in capital § 2255 cases to achieve high quality
representation together with cost and other efficiencies.
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7. Local or circuit restrictions prohibiting capital habeas units
(CHUs) from engaging in cross-district or cross-circuit
representation should not be imposed without good cause.
Every district should have access to a CHU.
8. Counsel in § 2255 cases should have distinguished prior
experience in the area of federal post-conviction proceedings
and in capital post-conviction proceedings.
9. When possible, post-conviction counsel should have
distinguished prior experience in capital § 2255 representations.
10. In evaluating the qualifications of proposed post-conviction
counsel, consideration should be given to the qualification
standards endorsed by bar associations and other legal
organizations regarding the quality of legal representation in
capital cases.
11. In evaluating the qualifications of proposed post-conviction §
2255 counsel, consideration should be given to their
commitment to the defense of capital cases, their current
caseload including other capital cases, and their willingness to
effectively represent the interests of the client.
E. Appointment and Qualifications of Counsel in Federal Capital
Habeas Corpus Proceedings (28 U.S.C. § 2254)
1. A financially eligible person seeking to vacate or set aside a
death sentence in proceedings under 28 U.S.C. § 2254 is entitled
to the appointment of qualified counsel. See 18 U.S.C. §
3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at
least two attorneys.
3. When appointing counsel in a capital § 2254 matter, the
appointing authority should consider the recommendation of
the Federal Public Defender who will consult with the National
or Regional Habeas Assistance and Training Counsel projects
4. In appointing counsel in a capital 2254 matter, judges should
give due weight to the recommendations made by federal
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defenders and resource counsel and articulate reasons for not
doing so.
5. Local or circuit restricts prohibiting Capital Habeas Units
(CHUs) from engaging in cross-district or cross-circuit
representation should not be imposed without good cause.
Every district should have access to a CHU.
6. Out-of-district counsel, including federal defender organization
staff, who possess the requisite expertise may be considered for
appointment in capital 2254 cases to achieve cost and other
efficiencies together with high quality representation.
7. For federal counsel to avail themselves of the full statute of
limitations period to prepare a petition, the court should
appoint counsel and provide appropriate litigation resources at
the earliest possible time permissible by law.
8. Unless precluded by a conflict of interest, or replaced by
similarly qualified counsel upon motion by the attorney or
motion by the defendant, capital § 2254 counsel must represent
the defendant throughout every subsequent stage of available
judicial proceedings and all available post-conviction processes,
together with applications for stays of execution and other
appropriate motions and procedures, and must also represent
the defendant in such competency proceedings and proceedings
for executive or other clemency as may be available to the
defendant. See 18 U.S.C. § 3599(e).
9. Counsel in capital § 2254 cases should have distinguished prior
experience in the area of federal post-conviction proceedings
and in capital post-conviction proceedings.
10. When possible, capital § 2254 counsel should have
distinguished prior experience in capital § 2254 representations.
11. In evaluating the qualifications of proposed capital § 2254
counsel, consideration should be given to the qualification
standards endorsed by bar associations and other legal
organizations regarding the quality of legal representation in
capital cases.
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12. In evaluating the qualifications of proposed capital § 2254
counsel, consideration should be given to proposed counsel’s
commitment to the defense of capital cases, their current
caseload including other capital cases, and their willingness to
represent effectively the interests of the client.
XV. Effective Date
This Plan will become effective when approved by the Judicial Council of the
Seventh Circuit.
ENTER FOR THE COURT ON THIS 13th day of November, 2019.
s/ Sara Darrow
CHIEF JUDGE, DISTRICT COURT
*APPROVED BY THE JUDICIAL COUNCIL OF THE SEVENTH CIRCUIT
ON DECEMBER 17, 2019.
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