No. 1:24-mc-00001-TWP
GENERAL ORDER/
ADMINISTRATIVE POLICY
2024-08
United States District Court
For the Southern District of Indiana
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 Southern District of Indiana 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 community defender organization,
attorneys provided by a bar association or legal aid agency, and
private attorneys appointed under the CJA must comply with the
Guide, Vol. 7A, approved by the Judicial Conference of the United
States or its Committee on Defender Services, and with this Plan.
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).
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 community defender and staff attorneys of
the federal community defender organization, and attorneys provided by
a bar association or legal aid agency.
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 faces a change of
a term or condition of probation (unless the modification
sought is favorable to the probationer and the government
has not objected to the proposed change, or the defendant
waives representation in writing);
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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 charged with a violation of supervised release or faces
extension or revocation of a term of supervised release; or
faces modification, reduction, or enlargement of a condition
(unless the defendant waives representation in writing);
g. is subject to a mental condition hearing under 18 U.S.C.
chapter 313;
h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence under
28 U.S.C. §§2254 or 2255;
j. 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;
k. is entitled to appointment of counsel under the Sixth
Amendment to the Constitution; or
l. 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. §2254 or 2255 other than to
set aside or vacate a death sentence;
c. is seeking relief under 28 U.S.C. § 2241;
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d. is charged with civil or criminal contempt and faces loss of
liberty;
e. 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 witness could be
subject to a criminal prosecution, a civil or criminal
contempt proceeding, or face loss of liberty;
f. has been advised by the United States attorney or a law
enforcement officer that he or she is the target of a grand
jury investigation;
g. is proposed by the United States attorney for processing
under a pretrial diversion program; or
h. is held for international extradition under 18 U.S.C. chapter
209.
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
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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
f. to 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. Presentation of Accused for Financial Eligibility Determination
a. Duties of Law Enforcement
(i) Upon arrest, and where the defendant has not
retained or waived counsel, federal law enforcement
officials must promptly notify, telephonically or
electronically, the appropriate court personnel, who
in turn will notify the community defender of the
arrest of an individual in connection with a federal
criminal charge.
(ii) Employees of law enforcement agencies should not
participate in the completion of the financial affidavit
or seek to obtain information concerning financial
eligibility from a person requesting the appointment
of counsel.
b. Duties of United States Attorney’s Office
(i) Upon the return or unsealing of an indictment or the
filing of a criminal information, and where the
defendant has not retained or waived counsel, the
United States attorney or their delegate will promptly
notify, telephonically or electronically, appropriate
court personnel, who in turn will notify the federal
community defender.
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(ii) Upon issuance of a target letter, and where the
individual has not retained or waived counsel, the
United States attorney or their delegate must
promptly notify, telephonically or electronically, the
appropriate court personnel, who in turn will notify
the federal community defender, unless the United
States Attorney’s Office is aware of an actual or
potential conflict with the target and the federal
community defender, in which case they must
promptly notify the court.
(iii) Employees of the United States Attorney’s Office
should not participate in the completion of the
financial affidavit or seek to obtain information
concerning financial eligibility from a person
requesting the appointment of counsel.
c. Duties of Federal Community Defender Office
(i) In cases in which the federal community defender
may be appointed, the office will:
• immediately investigate and determine whether
an actual or potential conflict exists; and
• in the event of an actual or potential conflict,
appoint CJA counsel pursuant to Appointment
Procedures as cited in Section XI.C.
(ii) When practicable, the federal community defender
will discuss with the person who indicates that he or
she is not financially able to secure representation the
right to appointed counsel and, if appointment of
counsel seems likely, assist in the completion of a
financial affidavit (Form CJA 23) and arrange to have
the person promptly presented before a magistrate
judge or district judge of this court for determination
of financial eligibility and appointment of counsel.
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d. Duties of Pretrial Services Office
(i) When practicable, the pretrial services officer will not
conduct the pretrial service interview of a financially
eligible defendant until counsel has been appointed,
unless the right to counsel is waived or the defendant
otherwise consents to a pretrial service interview
without counsel.
(ii) When counsel has been appointed, the pretrial
services officer will provide counsel notice and a
reasonable opportunity to attend any interview of the
defendant by the pretrial services officer prior to the
initial pretrial release or detention hearing.
2. Factual Determination of Financial Eligibility
a. In every case where appointment of counsel is authorized
under 18 U.S.C. § 3006A(a) and related statutes, the court
must advise the person that he or she has a right to be
represented by counsel throughout the case and that, if so
desired, counsel will be appointed to represent the person if
he or she is financially unable to obtain counsel.
b. The determination of eligibility for representation under the
CJA is a judicial function to be performed by the court after
making appropriate inquiries concerning the person’s
financial eligibility. Other employees of the court may be
designated to obtain or verify the facts relevant to the
financial eligibility determination.
c. In determining whether a person is “financially unable to
obtain counsel,” consideration should be given to the cost of
providing the person and his or her dependents with the
necessities of life, the cost of securing pretrial release, asset
encumbrance, and the likely cost of retained counsel.
d. The initial determination of eligibility must be made without
regard to the financial ability of the person’s family to retain
counsel unless their family indicates willingness and ability
to do so promptly.
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e. Any doubts about a person’s eligibility should be resolved in
the person’s favor; erroneous determinations of eligibility
may be corrected at a later time.
f. Relevant information bearing on the person’s financial
eligibility should be reflected on a financial eligibility
affidavit (Form CJA 23).
g. If at any time after the appointment of counsel a judge finds
that a person provided representation is financially able to
obtain counsel or make partial payment for the
representation, the judge may terminate the appointment of
counsel or direct that any funds available to the defendant
be paid as provided in 18 U.S.C. § 3006A(f).
h. If at any stage of the proceedings a judge finds that a person
is no longer financially able to pay retained counsel, counsel
may be appointed in accordance with the general provisions
set forth in this Plan.
V. Timely Appointment of Counsel
A. Timing of Appointment
Counsel must be provided to eligible persons as soon as feasible in the
following circumstances, whichever occurs earliest:
1. after they are taken into custody;
2. when they appear before a magistrate or district court judge;
3. when they are formally charged or notified of charges if formal
charges are sealed; or
4. when a magistrate or district court judge otherwise considers
appointment of counsel appropriate under the CJA and related
statutes.
B. Court’s Responsibility
The court, in cooperation with the federal community defender and the
United States attorney, will make such arrangements with federal, state,
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and local investigative and police agencies as will ensure timely
appointment of counsel.
C. Pretrial Service Interview
When practicable, unless the right to counsel is waived or the defendant
otherwise consents to a pretrial service interview without counsel,
financially eligible defendants will be provided appointed counsel prior to
being interviewed by a pretrial services officer.
D. Retroactive Appointment of Counsel
Appointment of counsel may be made retroactive to include
representation provided prior to appointment.
VI. Provision of Representational Services
A. Federal Community Defender and Private Counsel
1. This Plan provides for representational services by the federal
community defender organization and for the appointment and
compensation of private counsel from a CJA Panel list maintained
by the federal community defender in cases authorized under the
CJA and related statutes for the Indianapolis, Terre Haute, and
New Albany divisions.
2. This Plan provides for representational services by appointment
and compensation of private counsel from a CJA Panel list
maintained by the court in cases authorized under the CJA and
related statutes for the Evansville division.
B. Administration
1. Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the federal community defender for the
Indianapolis, Terre Haute and New Albany divisions.
2. Administration of the CJA Panel, as set forth in this Plan, remains
with the court for the Evansville division.
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C. Apportionment of Cases in Indianapolis and Terre Haute Divisions
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, is seeking to
vacate or set aside a death sentence in proceedings under 28 U.S.C.
§ § 2254 or 2255, or is pursuing other post-conviction processes as set
forth in Section XV of this Plan.
VII. Federal Community Defender Organization
A. Establishment
The federal community defender organization, Indiana Federal
Community Defenders, LLC, is established in this district under the CJA
and is responsible for rendering defense services on appointment for the
Indianapolis, Terre Haute, and New Albany divisions.
B. Standards
The federal community 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)).
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C. Workload
The federal community defender organization will continually monitor
the workloads of its staff to ensure high quality representation for all
clients.
D. Professional Conduct
The federal community defender organization must conform to the
highest standards of professional conduct, including but not limited to the
Indiana Rules of Professional Conduct, the Seventh Circuit Standards of
Professional Conduct, the Indiana Federal Community Defender Model
Code of Conduct for Employees, the American Bar Association’s Model
Rules of Professional Conduct, the American Bar Association’s Model
Code of Professional Conduct, and any other professional rules that
govern conduct in any jurisdiction where the attorney is admitted to
practice.
E. Private Practice of Law
Neither the federal community defender nor any defender employee may
engage in the private practice of law except as authorized by the
community defender Code of Conduct.
F. Supervision of Defender Organization
The federal community defender will be responsible for the supervision
and management of the federal community defender organization.
Accordingly, the federal community defender will be appointed in all
cases assigned to that organization for subsequent assignment to staff
attorneys at the discretion of the federal community defender.
G. Training
The federal community defender will assess the training needs of federal
community defender staff and, in coordination with the CJA Panel
Attorney District Representative, the training needs of the local panel
attorneys, and provide training opportunities and other educational
resources.
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VIII. CJA Panel of Private Attorneys
A. Establishment of the CJA Panel Committee
1. A CJA Panel Committee (CJA Committee, formerly known as the
Panel Selection Committee), charged with facilitating management
of the Indianapolis, Terre Haute, and New Albany CJA Panels, will
be established by the court in consultation with the federal
community defender. The CJA Committee will consist of one
district court judge, one magistrate judge, the federal community
defender, the CJA Panel Attorney District Representative (PADR), a
criminal defense attorney who practices regularly in the district
who may be a CJA panel member, the clerk of court, and an ex
officio staff member employed by the federal community defender
who will act as administrative coordinator.
2. The federal community defender, or his/her representative, and the
district’s PADR are permanent members of the CJA Committee.
Membership on the CJA Committee will otherwise be for a term of
three years and may be extended for an additional three years.
Members’ terms will be staggered to ensure continuity on the CJA
Committee.
3. The CJA Committee will meet at least twice 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 Panels for Indianapolis, Terre Haute, and New Albany, and
recommend to the court panel membership to those attorneys who
are deemed qualified and 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.
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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:
a. the size of the CJA Panel;
b. the recruitment of qualified and diverse attorneys as
required and set forth in this Plan; and
c. recurring issues or difficulties encountered by panel
members or their CJA clients.
4. Removal
Recommend to the court the removal of any CJA panel member
who:
a. fails to satisfactorily fulfill the requirements of CJA panel
membership during his or her 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.
See also Section IX.C.8 of this Plan.
5. Training
Assist the federal community defender office in providing training
for the CJA Panel on substantive and procedural legal matters
affecting representation of CJA clients.
IX. Establishment of CJA Panels
A. Approval of CJA Panels
1. The existing, previously established panels of attorneys who are
eligible and willing to be appointed to provide representation
under the CJA are hereby recognized.
2. The chair of the CJA Committee will recommend attorneys for
membership on the Indianapolis, Terre Haute, and New Albany
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CJA Panels after receiving recommendations from the CJA
Committee.
B. Size of CJA Panels
1. The size of the CJA Panels for Indianapolis, Terre Haute, and New
Albany will be determined by the CJA Committee based on the
caseload and activity of the panel members, subject to approval by
the court. The size of the CJA Panel for Evansville will be
determined by the court based on the caseload and activity of the
panel members.
2. The CJA Panels 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 Panels
1. Application
Application forms for membership on the Indianapolis, Terre
Haute and New Albany CJA Panels are available on the website of
the federal community defender
(www.indianafederaldefender.org). Applications for membership
on the Evansville CJA Panel are available on the court's website
(www.insd.uscourts.gov).
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 members in good
standing of the federal bar of this district and the United
States Court of Appeals for the Seventh Circuit.
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b. 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.
c. 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.
d. 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 and court’s
consideration.
4. Appointment to CJA Panel
After considering the recommendations of the CJA Committee
(Indianapolis, Terre Haute and New Albany); and the district and
magistrate judges (Evansville), the court will appoint or reappoint
attorneys to the divisional CJA Panels. 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 XV of this Plan.
5. Terms of CJA Panel Members
To establish staggered CJA membership terms, the staggered terms
of the current CJA Panel will be maintained. Thereafter, attorneys
admitted to membership on the CJA Panel will each serve for a
term of three years, subject to the reappointment procedures set
forth in this Plan.
6. Reappointment of CJA Panel Members - Indianapolis, Terre Haute
and New Albany
a. The federal community defender will notify CJA panel
members, prior to the expiration of their current terms, of
the need to apply for reappointment to the CJA Panel.
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b. A member of the CJA Panel who wishes to be considered for
reappointment must apply for appointment to an additional
term at least three months prior to the expiration of his or
her current term.
c. The CJA Committee will solicit input concerning the quality
of representation provided by lawyers seeking
reappointment.
d. 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.
7. Reappointment of CJA Panel Members - Evansville
a. The clerk of court will notify Evansville CJA panel members,
prior to the expiration of their current terms, of the need to
apply for reappointment to the CJA Panel.
b. The clerk of court will solicit input concerning the quality of
representation provided by lawyers seeking reappointment.
c. The court 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 any state court before
whom such member is admitted, or who is suspended or
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disbarred from this court or any federal court, will be
removed from the CJA Panel immediately.
b. Automatic disciplinary review
The CJA Committee (Indianapolis, Terre Haute, and
Evansville CJA Panels) or the clerk of court (Evansville CJA
Panel), as applicable, 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
community 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 federal
community defender (Indianapolis, Terre Haute, and
New Albany CJA Panels) or the clerk of court
(Evansville CJA Panel). The complaint will be
forwarded for review by the CJA Committee. The
CJA Committee will determine whether further
investigation is necessary. Such further investigation
may be made by the CJA Committee (Indianapolis,
Terre Haute, New Albany) or referred to the clerk of
court (Evansville).
(ii) Notice
When conducting an investigation, the CJA
Committee will notify the panel member of the
specific allegations.
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(iii) Response
A panel member subject to investigation may respond
in writing.
(iv) Protective action
Prior to disposition of any complaint as to a member
of the Indianapolis, Terre Haute, or New Albany CJA
Panels, 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. Prior to disposition of any complaint as to a
member of the Evansville CJA Panel, the clerk of
court may recommend temporary suspension or
removal of the panel member from any pending case,
or from the panel, and may recommend to the court
any other protective action that is in the best interest
of the client or the administration of this Plan.
(v) Review and recommendation
After investigation, the CJA Committee (as to a
member of the Indianapolis, Terre Haute, or New
Albany CJA Panels) or clerk of court (as to the
Evansville CJA Panel) 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.
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(vi) Final disposition by the court
The CJA Committee or clerk of court, as appropriate,
will forward its recommendation to the court 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 community defender will be immediately
notified when any member of the Indianapolis, Terre Haute,
or New Albany CJA Panel is removed or suspended.
9. Mentoring
The District Court Judges, in conjunction with the Magistrate
Judges, and the Indiana Federal Community Defender, will oversee
a CJA Developmental Panel program wherein attorneys who do
not have the requisite experience for membership on a CJA Panel
are eligible to assist or be mentored by the Federal Community
Defender, an Assistant Federal Defender, or a member of the CJA
Panel.
X. The CJA Panel Attorney District Representative
A. The CJA Panel Attorney District Representative (PADR) is a member of
the district’s CJA Panel who is selected by the local federal community
defender, with acquiescence from the chief judge, to serve as the
representative of the district’s CJA panel for the national Defender
Services CJA PADR program and local CJA committees. In selection of the
Representative, the Community Defender will value the selection of
diverse candidates.
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B. Term of PADR
1. The PADR shall serve for a term of three years, with a maximum of
two consecutive terms.
2. No later than the expiration of two terms, the federal community
defender will select a replacement and provide that information for
consideration by the CJA Panel Committee and approval by the
Chief Judge as a part of the same yearly submission recommending
panel additions or reappointments to the CJA panel as referenced in
Section VIII of this Plan.
XI. CJA Panel Attorney Appointment in Non-Capital Cases
A. Appointment List
The federal community defender will maintain a current list of all
attorneys included on the CJA Panels of Indianapolis, Terre Haute, and
New Albany. The clerk of court will maintain a list of all attorneys
included on the CJA Panel of Evansville. These lists will include current
office addresses, email addresses, and telephone numbers, as well as a
statement of qualifications and experience.
B. Interdivisional Appointments
Attorneys appointed to any divisional CJA Panel are eligible for
appointment as counsel in cases in any division of the court.
C. Appointment Procedures (Indianapolis, Terre Haute, and New Albany
Divisions)
1. The federal community defender is responsible for overseeing the
appointment of a member of the CJA Panel in any division to cases
in the Indianapolis, Terre Haute, and New Albany divisions. The
federal community defender will maintain a record of panel
attorney appointments and, when appropriate, data reflecting the
apportionment of appointments between attorneys from the federal
community defender office and panel attorneys.
2. Appointment of cases to CJA panel members will ordinarily be
made on a rotational basis with the goal of a balanced distribution
of appointments and compensation among members of the CJA
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panel and quality representation for each CJA defendant. The
federal community defender may make exceptions to rotational
appointments due to the nature and complexity of the case, an
attorney's experience or qualifications, and geographical
considerations.
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 community defender.
D. Appointment Procedures (Evansville Division)
Upon the determination of the need for the appointment of counsel, any
district judge or magistrate judge assigned to or handling a case filed or
pending in the Evansville Division, shall appoint an available member of
any divisional CJA Panel who has handled, or assisted in, an action of
equal or greater complexity than the action for which appointment of
counsel is required. When necessary, the court may appoint a qualified
defense lawyer who is not a member of the Evansville CJA Panel.
XII. 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
21
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))).
2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, including but not limited to the
Indiana Rules of Professional Conduct, The Seventh Circuit
Standards of Professional Conduct, the Indiana Federal
Community Defender Model Code of Conduct for Employees, the
American Bar Association’s Model Rules of Professional Conduct,
the American Bar Association’s Model Code of Professional
Conduct, and any other professional rules that govern conduct in
any jurisdiction where the attorney is admitted to practice
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 Recommendations 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 community 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 6 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.
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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
Once counsel is appointed under the CJA, counsel will continue the
representation 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.
Upon a defendant's request to appeal, counsel appointed under the CJA
shall continue representation in the matter under the terms of this Plan
and the Seventh Circuit's CJA Plan. At a minimum, counsel shall (1) file
the notice of appeal; (2) order the necessary transcripts; and (3) file the
docketing statement in the court of appeals. If counsel is unable or does
not wish to continue representing the defendant for the duration of the
appeal, counsel shall immediately file a motion to withdraw with the
court of appeals pursuant to Circuit Rule 51(a). Relief from continuing
appellate duties under Rule 51(a) "shall be freely granted" by the court of
appeals and does not require a showing of good cause under Rule 51(c).
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 the Guide, Vol. 7A,
Ch. 2, §§ 230.26.10–20.
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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.
XIII. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
1. 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.
2. Voucher reductions should be limited to:
a. Mathematical errors;
b. Instances in which work billed was not compensable;
c. Instances in which work was not undertaken or completed;
and
d. Instances in which the hours billed are clearly in excess of
what was reasonably required to complete the task.
3. A panel attorney may challenge a voucher reduction. A challenge
need not follow any particular form, but it must be in writing and
state the basis for the challenge with specificity. Any challenge
should be directed to the clerk of court. The clerk will forward the
challenge to a district judge other than the district judge who
24
presided over the underlying case for review. The reviewing judge
may request an opinion from the federal community defender or
may take any other action necessary to resolve the challenge,
including but not limited to seeking additional input from the
presiding judge, the panel attorney, and the Circuit CJA case
budgeting attorney. The reviewing judge should issue a written
decision to the clerk no later than 30 days after receipt of the
challenge.
B. 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 its designee will review the claim for mathematical
and technical accuracy and for conformity with the Guide, Vol. 7A
and, if correct, will forward the claim for consideration and action
by the presiding judge.
4. For Indianapolis, Terre Haute and New Albany cases, when a claim
for compensation exceeds the statutory maximum, the claim for
compensation will first be submitted to the federal community
defender for review and preparation of a memo to the court
recommending payment in full, payment in part, or disallowance
of the voucher. Appointed counsel shall include a memo
explaining why the claim for compensation exceeds the statutory
maximum when the voucher is submitted. For Evansville cases,
when a claim for compensation exceeds the statutory maximum,
appointed counsel shall submit a memo to the court explaining
why the claim for compensation exceeds the statutory maximum
when the voucher is submitted.
5. 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.
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6. 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.
7. The court, when contemplating reduction of a CJA voucher for
other than mathematical reasons, may refer the voucher to the
federal community defender for review and recommendation
before final action on the claim is taken. See Section VIII of this
Plan.
8. 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 to
the federal community defender for review and recommendation.
XIV. 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 CM/ECFsystem) and must not be disclosed except with the
consent of the person represented or as required by law or Judicial
Conference policy.
C. Compliance
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Counsel must comply with Judicial Conference policies set forth in the
Guide, Vol. 7A, Ch. 3.
XV. 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 the 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
27
proceedings for executive or other clemency as may be available to
the defendant. See 18 U.S.C. § 3599(e). 1
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 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 community 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. The federal community defender should promptly
provide a recommendation regarding the appointment of qualified
counsel. Absent good cause, the court must defer to the federal
community defender’s recommendation.
6. 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
1
Such proceedings and processes may include, but are not limited to, actions under 28 U.S.C. § 2241, 42
U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), or the Administrative Procedure Act, 5 U.S.C. § 551 et seq.
28
defender organization or a CJA panel attorney or an attorney
appointed pro hac vice. See 18 U.S.C. § 3006A(a)(3).
7. 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.
8. All attorneys appointed in federal capital cases must have sufficient
time and resources to devote to the representation, taking into
account their current caseloads and the extraordinary demands of
federal capital cases.
9. 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.
10. All attorneys appointed in federal capital cases should consult
regularly with the appropriate Resource Counsel projects.
11. 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 2
1. General Requirements
2
The Judicial Conference adopted detailed recommendations on the appointment and compensation of
counsel in federal death penalty cases in 1998 (JCUS-SEP 98, p. 22). In September 2010, the Defender
Services Committee endorsed revised commentary to the Judicial Conference’s 1998 recommendations.
CJA Guidelines, Vol. 7A, Appx. 6A (Recommendations and Commentary Concerning the Cost and
Quality of Defense Representation (Updated Spencer Report, September 2010)) (“Appx. 6A”) is available
on the judiciary’s website.
29
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 this section.
c. At the outset of every capital case, the court must appoint
two attorneys, at least one of whom meets the 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, absent good cause the judge must
defer to the recommendation of the federal community
defender, who will consult with Federal Death Penalty
Resource Counsel to recommend qualified counsel. See
18 U.S.C. § 3005.
e. To effectuate the intent of 18 U.S.C. § 3005 that the federal
community defender’s recommendation be provided to the
court, the judge should ensure the federal community
defender has been notified of the need to appoint capitally-
qualified counsel.
f. 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 community defender in
conjunction with the Federal Death Penalty Resource
Counsel and Capital Resource Counsel projects.
g. Out-of-district counsel, including federal defender
organization staff, who possess the requisite expertise may
be considered for appointment in capital trials to achieve
30
high quality representation together with cost and other
efficiencies.
h. 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 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.
31
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 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, absent good
cause the court must defer to the recommendation of the federal
32
community defender, who will consult with the Federal Capital
Habeas § 2255 Project.
5. 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.
6. Unless replaced by similarly qualified counsel upon motion by the
attorney or motion by the defendant, capital § 2255 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).
7. Counsel in § 2255 cases should have distinguished prior experience
in the area of federal post-conviction proceedings and in capital
post-conviction proceedings.
8. When possible, post-conviction counsel should have distinguished
prior experience in capital § 2255 representations.
9. 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.
10. 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)
33
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, absent good
cause, the appointing authority must defer to the recommendation
of the federal community defender who will consult with the
National or Regional Habeas Assistance and Training Counsel
projects.
4. 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.
5. In order 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.
6. Unless 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).
7. Counsel in capital § 2254 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and in
capital post-conviction proceedings.
8. When possible, capital § 2254 counsel should have distinguished
prior experience in capital § 2254 representations.
34
9. 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.
10. 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.
XVI. Effective Date
This Plan will become effective when approved by the Judicial Council of the
Seventh Circuit.
ENTERED FOR THE COURT on this 13th day of November, 2023.
_________________________________________
TANYA WALTON PRATT, CHIEF JUDGE
United States District Court
APPROVED BY THE JUDICIAL COUNCIL OF THE SEVENTH CIRCUIT ON
this _____ March
8th day of _________________, 2024.
s/Sarah O. Schrup
_________________________________________
By: Sarah O. Schrup, Circuit Executive
United States Court of Appeals for the Seventh
Circuit
35
