Criminal Justice Act Plan
United States District Court
Eastern District of Washington
TABLE OF CONTENTS
I. AUTHORITY ................................................................................................................ 1
II. STATEMENT OF POLICY............................................................................................... 1
A. Objectives ....................................................................................................... 1
B. Representational Services ............................................................................... 1
C. Panel Administration....................................................................................... 2
D. Compliance ..................................................................................................... 2
III. DEFINITIONS .............................................................................................................. 2
IV. ELIGIBILITY FOR CJA REPRESENTATION ....................................................................... 3
A. Subject-Matter Eligibility ................................................................................. 3
B. Financial Eligibility and Initial Appointment Procedure .................................... 5
V. TIMELY APPOINTMENT OF COUNSEL .......................................................................... 7
VI. COMMUNITY DEFENDER ORGANIZATION ................................................................... 8
A. Establishment ................................................................................................. 8
B. Staff Supervision and Case Workload .............................................................. 8
C. Private Practice of Law .................................................................................... 8
D. Standards and Professional Conduct ................................................................ 8
E. Panel Attorney Training................................................................................... 9
VII. CJA PANEL COMMITTEE .............................................................................................. 9
A. Establishment ................................................................................................. 9
B. Duties ........................................................................................................... 10
VIII. CJA PANEL MEMBERSHIP .......................................................................................... 11
A. Establishment ............................................................................................... 11
B. Size ............................................................................................................... 11
C. Qualifications and Membership ..................................................................... 12
D. Reappointment ............................................................................................. 13
E. Removal ........................................................................................................ 14
F. Complaints .................................................................................................... 15
IX. CJA PANEL MEMBER DUTIES ..................................................................................... 17
A. Standards and Professional Conduct .............................................................. 17
B. Training and Continuing Legal Education ....................................................... 18
C. Facilities and Technology Requirements ........................................................ 18
X. COUNSEL APPOINTMENT IN NON-CAPITAL CASES ..................................................... 18
A. Apportionment of Cases ................................................................................ 18
B. Number of Counsel ....................................................................................... 18
C. Mentee Counsel ............................................................................................ 19
D. Appointment List .......................................................................................... 19
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E. Appointment Procedure ................................................................................ 19
F. Non-Panel Attorney Appointments................................................................ 20
G. Continuing Representation ............................................................................ 20
XI. CJA ATTORNEY COMPENSATION AND FUNDING FOR NEEDED SERVICES .................... 20
A. Court Compensation Policies ......................................................................... 20
B. Claim Submission .......................................................................................... 21
C. Voucher Review Procedure ........................................................................... 22
D. Voucher Reductions and Independent Review Procedures ............................. 22
E. Associate Counsel ......................................................................................... 23
F. Mentee Counsel ............................................................................................ 23
G. Investigative, Expert, and Other Services; Litigation Expenses ........................ 24
H. Voluminous Discovery ................................................................................... 25
I. Case Budgeting and Litigation Planning ......................................................... 26
J. Establish and Adhere to Approved Rates ....................................................... 26
K. Overhead Costs ............................................................................................. 26
L. No Receipt of Other Payment ........................................................................ 27
XII. SPECIAL PROVISIONS FOR CAPITAL CASES ................................................................. 27
A. Capital Cases ................................................................................................. 27
B. Applicable Legal Authority............................................................................. 27
C. Counsel Qualifications ................................................................................... 27
D. Appointment of Counsel................................................................................ 28
E. Case Budgeting and Resources ...................................................................... 30
XIII. EFFECTIVE DATE ....................................................................................................... 30
APPENDIX 1: BYLAWS OF FEDERAL DEFENDERS OF EASTERN WASHINGTON ......................... 31
APPENDIX 2: TECHNOLOGY REQUIREMENTS FOR THE EASTERN DISTRICT OF WASHINGTON. 38
ii
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
I. AUTHORITY
The judges of the United States District Court (Court) for the Eastern District of
Washington adopt this Criminal Justice Act Plan (Plan), as approved by the Ninth Circuit,
for furnishing representation in federal court for any person financially unable to obtain
adequate representation as required by the Criminal Justice Act (CJA) of 1964, as
amended, 18 U.S.C. § 3006A, and the Guidelines for Administering the CJA and Related
Statutes, Volume 7A, Guide to Judiciary Policy (CJA Guidelines).
II. STATEMENT OF POLICY
A. Objectives
The objectives of this Plan are to attain the goal of equal justice under the law by
providing all eligible persons with timely appointed counsel services that are
consistent with high quality practices of the legal profession; to ensure that
services are cost-effective without compromising the quality of representation;
to promote the independence of the defense function so that the rights of
individual defendants are safeguarded and enforced; and to particularize the
requirements of the CJA, the USA Patriot Improvement and Reauthorization Act
of 2005 (recodified at 18 U.S.C. § 3599), CJA Guidelines, Ninth Circuit CJA Policies
and Procedures, and Local Rules of the District of Eastern Washington in a
manner that meets the needs of this district.
This Plan must 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. Representational Services
This Plan provides for representational services by the Federal Defenders of
Eastern Washington and Northern Idaho (“Federal Defenders”), and for the
appointment and compensation of private attorneys from an approved list (“CJA
Panel”) and other private attorneys in limited circumstances, in cases authorized
under the CJA and related statutes.
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C. Panel Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby delegated and
assigned to the CJA Panel Committee and the CJA Supervising Attorney.
D. Compliance
The Court, its clerk, the Federal Defenders, attorneys provided by a bar
association or legal aid agency, private attorneys appointed under the CJA,
federal law enforcement officers, the United States Attorney’s Office, the United
States Marshals Service, and the Pretrial Services Office must comply with the
CJA Guidelines approved by the Judicial Conference or its Committee on
Defender Services, the Ninth Circuit’s CJA Policies and Procedures, and this Plan.
The Court will ensure that a current copy of the CJA Plan and WAED Billing Guide
is made available on the Court and Federal Defenders’ websites. The Court will
also provide a copy to counsel upon the attorney’s designation as a member of
the CJA Panel.
III. DEFINITIONS
A. “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 Defenders and staff attorneys of the Federal Defenders,
and attorneys provided by a bar association or legal aid agency.
B. “CJA Supervising Attorney” is an attorney employed by the Court who assists
the Court in the administration of Panel management, implementation of the
district’s CJA Plan, and voucher review and processing.
C. “Panel Attorney District Representative” (PADR) is a member of the district’s
CJA Panel who is recommended by the Panel committee and selected by the
Chief Judge, to serve as a representative of the District’s CJA Panel for the
Defender Services CJA PADR program and local CJA committees. The PADR will
serve a term of three years, subject to re-appointment for one additional term
for a total of a six years maximum service as a PADR.
D. “Representation” includes counsel, service providers (such as paralegals,
investigators, or experts), litigation support vendors, and expenses.
E. “Federal Defenders” is the existing community defender – the Federal
Defenders of Eastern Washington and Northern Idaho.
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IV. 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);
d. is under arrest, when appointed representation is required by
law;
e. is entitled to appointed counsel in parole proceedings;
f. is charged with a violation of supervised release or faces
modification, reduction, or enlargement of a condition, or
extension or revocation of a term of supervised release;
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 or when an
evidentiary hearing is warranted in a non-capital proceeding
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;
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b. is seeking relief under 28 U.S.C. § 2241, 2254, or 2255 other than
to set aside or vacate a death sentence, unless an evidentiary
hearing is warranted (see IV(A)(1)(i));
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 that 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 or 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 federal grand
jury or federal criminal investigation;
f. is proposed by the United States Attorney for processing under a
pretrial diversion program;
g. is held for international extradition under 18 U.S.C. Chapter 209;
3. Ancillary Matters. The Court has the discretion to appoint counsel 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 to:
a. protect a constitutional right;
b. contribute in some significant way to the defense of the principal
criminal charge;
c. aid in preparation for the trial or disposition of the principal
criminal charge;
d. enforce the terms of a plea agreement in the principal criminal
charge;
e. 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
f. effectuate the return of real or personal property belonging to the
CJA client that 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).
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B. Financial Eligibility and Initial Appointment Procedure
1. Duties of Arresting Agencies and the United States Marshals Service
a. Following an arrest, an arresting law enforcement agency must
promptly notify, telephonically or electronically, the U.S.
Attorney’s Office of the arrest. If the arrest was by the United
States Marshals Service, the USMS must promptly notify,
telephonically or electronically, the appropriate Magistrate
Judge’s chambers of the arrest. Employees of law enforcement
agencies including the United States Marshals Service may 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.
2. Duties of the United States Attorney’s Office
a. Upon the return or unsealing of an indictment or the filing of a
criminal complaint or information, or when notified by an
arresting agency of a person’s arrest, and when the defendant
does not have known retained counsel, the United States
Attorney’s Office will promptly notify, telephonically or
electronically, the appropriate Magistrate Judge’s chambers,
which in turn will notify the Federal Defenders unless the United
States Attorney’s Office is aware of and communicates an actual
or potential conflict with the defendant and the Federal
Defenders, in which case the Court will instead notify the CJA
Supervising Attorney to facilitate the appointment of counsel.
b. Upon issuance of a target letter, and when the individual does not
have known retained counsel, the United States Attorney’s Office
will promptly notify, telephonically or electronically, the
appropriate Magistrate Judge’s chambers, which in turn will notify
the Federal Defenders unless the United States Attorney’s Office
is aware of and communicates an actual or potential conflict with
the target and the Federal Defenders, in which case the Court will
instead notify the CJA Supervising Attorney to facilitate the
appointment of counsel.
c. Employees of the United States Attorney’s Office may 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.
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3. Duties of the Federal Defenders Office
a. In cases in which the Federal Defenders may be appointed, the
Federal Defenders will immediately investigate and determine
whether an actual or potential conflict exists and, if so, will
promptly notify the Court or the CJA Supervising Attorney to
facilitate the timely appointment of other counsel.
b. Whenever practicable, an attorney from the Federal Defenders
will discuss with the person the right to appointed counsel, assist
with completion of a financial affidavit (Form CJA 23), and arrange
to have the matter promptly presented before a Magistrate Judge
to determine financial eligibility and appointment of counsel.
4. Duties of the Pretrial Services Office
a. When counsel has been appointed, the assigned 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.
b. Unless it is not practicable, the pretrial services officer will not
conduct the pretrial services 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 services interview without counsel.
5. Eligibility Determination
a. In every case when 18 U.S.C. § 3006A(a) and related statutes
authorize appointment of counsel, 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, the Court will appoint
counsel to represent the person if he or she is financially unable
to obtain counsel.
b. The completed financial eligibility affidavit (Form CJA-23) should
reflect relevant information bearing on the person’s financial
eligibility for appointed counsel and should not be added to the
public case file.
c. Determining eligibility for representation under the CJA is a
judicial function performed by the Court after appropriate
inquiries are made concerning the person’s financial eligibility.
Other employees of the Court or the Federal Defenders may be
designated to obtain or verify the facts relevant to the financial
eligibility determination if an attorney from the Federal Defenders
is not available.
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6. Standards
a. In determining whether a person is “financially unable to obtain
counsel,” the Court should consider the cost of providing the
person and the person’s dependents with life’s necessities, the
cost of securing pretrial release, asset encumbrance, and the
likely cost of retaining counsel.
b. The initial eligibility determination 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.
c. Any doubts about a person’s eligibility should be resolved in the
person’s favor; erroneous determinations of eligibility may be
corrected later.
d. If, at any time after the appointment of counsel, a judge finds that
a person provided representation is financially able to retain
private counsel or make partial payment for the appointed
representation, the judge may terminate the counsel
appointment or direct the defendant to pay available funds as
provided in 18 U.S.C. § 3006A(f).
e. If, at any stage of the proceedings, a judge finds that a person is
no longer financially able to pay retained counsel, counsel will be
appointed in accordance with the general provisions set forth in
this Plan.
f. If, at any stage of the proceedings, a judge finds that a pro se or
privately represented person is not financially able to pay other
representation costs including investigative, expert, or other
services, funding may be authorized for those costs in accordance
with the general provisions set forth in this Plan.
V. TIMELY APPOINTMENT OF COUNSEL
A. Eligible persons must receive appointed counsel as soon as feasible. This means
as soon as possible after receiving a target letter, after being taken into custody,
upon appearing before a judicial officer, when formally charged, when notified
of charges if formal charges are sealed, or when a judicial officer otherwise
determines that appointed counsel is appropriate under the CJA or this Plan,
whichever occurs earliest. The Court, in cooperation with the Defender
Organization and the United States Attorney, will make such arrangements with
federal, state, and local investigative and police agencies as will ensure timely
appointment of counsel.
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B. When practicable, unless the right to counsel is waived or the defendant
otherwise consents to a pretrial services interview without counsel, financially
eligible persons will be provided appointed counsel prior to being interviewed by
a pretrial services officer. The Federal Defenders will establish a schedule of on-
call “duty day” or “duty week” attorneys to advise persons who are in custody,
or who otherwise may be entitled to counsel under the CJA, during the pretrial
services interview process.
C. Appointment of counsel may be made retroactive to include representation
provided prior to appointment.
VI. COMMUNITY DEFENDER ORGANIZATION
A. Establishment
The Federal Defenders of Eastern Washington and Northern Idaho (“Federal
Defenders”), a Community Defender Organization previously established in this
district under the provisions of the CJA, is recognized as the federal public
defender organization for this district. The Federal Defenders organization is
authorized to provide representation throughout the Eastern District of
Washington and Northern Idaho and shall continue to be governed by its Board
of Directors. The Bylaws of the Federal Defenders are at Appendix 1.
B. Staff Supervision and Case Workload
The Federal Defenders’ Executive Director is responsible for supervising and
managing the Defender Organization. Accordingly, the Federal Defenders will be
appointed in all cases assigned to that organization for subsequent assignment
to staff attorneys at the Federal Defenders’ office. The Federal Defenders and its
Executive Director will continually monitor staff workloads to ensure high-quality
representation for all clients.
C. Private Practice of Law
Neither the Federal Defenders nor any defender employee may engage in the
private practice of law except as authorized by the Model Code of Conduct for
Federal Community Defender Employees.
D. Standards and Professional Conduct
The Federal Defenders must provide high quality representation and conform to the
highest standards of professional conduct, including but not limited to the Model Code
of Conduct for Federal Community Defender Employees in Appendix 4B of the CJA
Guidelines.
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E. Panel Attorney Training
The CJA Panel Committee, the PADR, the CJA Supervising Attorney, and the
Federal Defenders will assess the training needs of the CJA Panel and provide
regularly scheduled training opportunities and other educational resources that
include updates regarding substantive law, sharing best practices in federal
criminal defense, and presentations on courtroom and office technology. See
also Section IX.B.
VII. CJA PANEL COMMITTEE
A. Establishment
1. Two CJA Panel Committees will be established by the Court in
consultation with the CJA Supervising Attorney and the Federal
Defenders’ Executive Director to assist the Court in the selection,
oversight, and management of CJA Panel members. One committee will
be established to serve the Spokane Court (“Northern Division”), and a
second committee will be established to serve the courts in Yakima and
Richland (“Southern Division”). The CJA Panel Committees may establish
subcommittees that include non-members to address specific CJA-related
issues such as recruiting panel members, training, mentoring, reviewing
complaints, and reviewing voucher reductions. The composition of the
CJA Panel Committees shall be approved by the District Judges. For ease
of reference herein, the committees will be referred to in the singular, as
the “Panel Committee.” Activities and actions set forth in this Plan refer
to the relevant Panel Committee in either the Northern Division or the
Southern Division.
2. At a minimum, the CJA Panel Committees must each consist of:
a. at least one judicial officer;
b. the Federal Defenders’ Executive Director (or delegate approved
by the Chief Judge), who will be a permanent member of the CJA
Panel Committee;
c. the district’s current PADR (or delegate approved by the Chief
Judge), who will be a permanent member of the CJA Panel
Committee;
d. the district’s CJA Supervising Attorney, who will be a permanent
member of the CJA Panel Committee; and
e. three CJA Panel members from the respective Panels serving
Spokane and Yakima/Richland.
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3. Except for the judicial officers, Federal Defenders’ Executive Director,
PADR, and CJA Supervising Attorney, members will serve for 3 years and
may be extended for one additional 3-year term. Terms will be staggered
to ensure continuity on the CJA Panel Committee and rotation of
members. Vacancies will be filled upon recommendation of the
remaining committee members and approval of the Chief District Judge,
who shall consult with the District Judges. The court should make a
diligent effort to ensure that the composition of the CJA Panel Committee
reflects the racial, ethnic, gender, and geographic diversity of the district
4. The CJA Panel Committee will meet at least once per year and at any time
the Court or three or more committee members ask the committee to
consider a CJA-related issue. The Northern Division and Southern
Division Panel Committees will meet at least once per year in a joint
session. Decisions of the Committee will be by simple majority vote.
5. Recusal.
a. A member of the CJA Panel Committee (“committee member”) must
recuse himself or herself from all participation in the consideration of
a matter concerning a Panel member and must refrain from
attempting to influence others with respect to such consideration
when the committee member is aware of a personal conflict of
interest.
b. In the event that a committee member does not voluntarily recuse
himself or herself, the committee must, upon becoming aware of
factors that may indicate a potential conflict of interest, initiate an
inquiry and determine whether the committee member should be
recused. Any resulting determination by the committee on recusal is
final and binding.
B. Duties
1. CJA Panel Membership. The relevant CJA Panel Committee will examine
applications for appointment or reappointment to the Non-Capital CJA
Panel, Capital CJA Panel, and CJA Appellate Panel, and recommend to the
Chief District Judge approval of those attorneys deemed qualified to
serve on these panels. The relevant CJA Panel Committee will also
recommend removal of any CJA Panel attorney who fails to satisfy the
requirements of Panel membership, including failing to provide high-
quality representation, or who engages in conduct that would render
continued Panel service inappropriate.
2. Recruitment. The CJA Panel Committee will strive to create and maintain
diverse CJA Panels of the highest-caliber federal criminal defense
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practitioners. In conjunction with a mentoring program, the committee
will devise a recruitment strategy that identifies and trains a diverse set
of viable Panel applicants.
3. Mentoring. The CJA Panel Committee will review and decide mentor and
mentee applicants in accordance with the district’s mentorship program.
4. Training. The CJA Panel Committee is encouraged to assist the CJA
Supervising Attorney and Federal Defenders in devising and presenting
training programs for the CJA Panel.
5. Voucher Review. The CJA Panel Committee will exercise independent
review of disputed voucher reductions pursuant to Sections XI.D.
6. Annual Report. Annually, the CJA Panel Committee will review Panel
operation and administration for the preceding year and provide a report
to the Chief District Judge describing efforts to recruit qualified and
diverse Panel members, proposed changes to Panel size, recurring issues
or difficulties that Panel attorneys or their clients encounter, and other
operating difficulties, along with recommendations for appropriate
changes and improvements.
VIII. CJA PANEL MEMBERSHIP
A. Establishment
The existing, previously established Northern Division and Southern Division
Panels of attorneys who are eligible and willing to be appointed to provide
representation under the CJA are hereby recognized. The Court will approve
additional attorneys for membership on the CJA Panel after receiving
recommendations from the CJA Panel Committee. Nothing in this Plan creates a
property interest in being or remaining on the CJA Panel.
B. Size
The CJA Panel size will be determined by the relevant CJA Panel Committee,
subject to the Court’s review, based on Panel member caseloads and activity.
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
Panel members will each receive an adequate number of appointments to
maintain their federal criminal defense work proficiency, enabling them to
provide high-quality representation consistent with the best practices of the
legal profession.
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C. Qualifications and Membership
1. Equal Opportunity. All qualified attorneys are encouraged to apply for
CJA Panel membership. The CJA Panel Committee shall not discriminate
against, or grant preferential treatment to, any individual or group on the
basis of race, sex, color, ethnicity, national origin, gender identity, sexual
orientation, age, religion, or disability.
2. Application. Applications for CJA Panel membership are available on the
District Court and Federal Defenders’ websites. Applications must be
submitted to the Court by December 31 of each year. Unless exigent
circumstances exist, the CJA Panel Committee will meet in January to
review applications.
3. Eligibility for Non-Capital CJA Panel. Applicants must:
a. Unless otherwise approved by the Court, be members in good
standing of The United States District Court for the Eastern
District of Washington. The Court can permit Panel members who
are attorneys in good standing from other district courts or state
bars to expand the applicant pool. The attorney must apply to be
a Panel member through the Court’s regular CJA Panel member
application process. In such cases, the pro hac vice requirements
under LCivR 83.2(c)(3) are waived. Panel members assigned
exclusively to appeals need not be members of the bar of the
Eastern District of Washington, provided they are admitted to and
in good standing with the Ninth Circuit Court of Appeals;
b. except for Appellate or Capital Panel members, maintain a
primary, satellite, or shared office in the Eastern District of
Washington or Northern Idaho;
c. possess strong litigation and writing skills;
d. demonstrate proficiency with the Bail Reform Act,
Recommendations for Electronically Stored Information Discovery
Production in Federal Criminal Cases (ESI Protocol), Federal Rules
of Evidence, Federal Rules of Criminal Procedure, Federal Rules of
Appellate Procedure, United States Sentencing Guidelines, federal
sentencing procedures, and this District’s Local Rules;
e. have the training and ability to manage and effectively utilize
electronic case presentation equipment and software in the
courtroom and manage electronic discovery;
f. have significant experience representing persons charged with
serious criminal offenses and demonstrate a commitment to the
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defense of people who lack the financial means to hire an
attorney;
g. at a minimum, have practiced law for at least three years;
h. have tried at least two felony jury cases to verdict in either state
or federal court (alternatively, an applicant must have appeared
as defense counsel of record in at least two federal felony cases
from initial appearance or arraignment through sentencing and
have other significant litigation experience as determined by the
CJA Panel Committee); and
i. not be actively engaged in the prosecution of any criminal charges
by, or on behalf of, a state, county, city, or other entity with
authority to prosecute criminal offenses.
With the exception of Section i, above, attorneys who do not possess the
criteria 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 Committee’s consideration.
4. Eligibility for Capital CJA Panel. Applicants must:
a. be qualified and willing to accept appointments in death penalty
prosecutions and/or capital habeas cases; and
b. meet the requirements set out in Section XII.
D. Reappointment
1. All Panel members shall reapply for placement on the Panel on a
staggered, rotating, 3-year basis. For members of the Washington State
Bar Association, the Panel member’s term shall coincide with the Panel
members’ continuing legal education reporting requirements to the
Washington State Bar Association. Other Panel members, Appellate, and
Capital Panel members who are not members of the Washington Bar
must establish that they meet the CLE requirements of the Bar or Bars to
which they belong. Any mandatory training for continued membership on
the Panel must be reported at the time of reapplication.
2. The Court will notify CJA Panel members, within 3 months prior to the
expiration of their current terms, of the need to apply for reappointment
to the CJA Panel, and will set forth the procedures and deadlines for re-
applying.
3. In considering the re-appointment of CJA Panel members, the CJA Panel
Committee may:
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a. solicit input from the legal community and the Court concerning
the quality of representation provided by attorneys seeking
reappointment;
b. request a personal interview with the CJA Panel member; and
c. consider the number of cases the CJA Panel member accepted
and declined during the review period, the member’s
participation in training opportunities and compliance with
continuing legal education requirements, whether the member
continues to meet this Plan’s technology and facilities
requirements, whether the member has been the subject of any
complaints, whether the member has complied with CJA funding
authorization and billing procedures and requirements, and
whether the member continues to meet the prerequisites and
obligations of CJA Panel members or applicants as set forth in this
Plan.
4. If the CJA Panel Committee is considering the denial of an application for
re-appointment of an existing Panel member, the CJA Panel Committee
will notify the Panel member and the Court and provide to the Panel
member an opportunity to respond in writing. The Court, in its discretion,
may provide an opportunity for the Panel member to appear before the
Court concerning the denial of the member’s reapplication.
5. Renewed Panel membership is not guaranteed. The CJA Committee
reserves the right to deny renewal for reasons other than poor
performance. The reasons for non-renewal include but are not limited to
1) decreasing the number of Panel members to provide the existing Panel
members with a sufficient number of cases to maintain proficiency; and
2) opening up spaces for new attorneys on the Panel in order to create a
diversified and vibrant Panel membership.
E. Removal
1. Mandatory Removal. Members of the CJA Panel who are suspended or
disbarred from the practice of law by any state or federal court will be
removed from the CJA Panel immediately without a review process and
ordered to withdraw from current CJA representations. The Federal
Defenders will be immediately notified when any member of the CJA
Panel is removed.
2. Automatic Disciplinary Review. The CJA Panel Committee will conduct an
automatic disciplinary review of any CJA Panel member when (i) the
Panel member has been disciplined by any attorney licensing authority or
Bar grievance committee; or (ii) any state or federal court has made a
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finding of ineffective assistance of counsel against the Panel member.
3. Discretionary Review. The CJA Panel Committee has the discretion to
conduct a disciplinary review of any CJA Panel member where any state
or federal court has made a finding of contempt or imposed a sanction
against the Panel member, or where the CJA Panel Committee has
received a complaint under Section VIII.F, below.
F. Complaints
1. Initiation. A complaint about the performance of any CJA Panel member
may be initiated by any concerned individual and will be directed to the
CJA Supervising Attorney who will be responsible for directing the
complaint to the CJA Panel Committee, which will determine whether
further investigation is necessary. Complaints must be in writing and
state the alleged deficiency with specificity. A complainant will receive
acknowledgement of the receipt of the complaint, but further notice to
the complainant is not required. A complainant’s request for anonymity
will be respected but cannot be guaranteed.
2. Notice. Upon receiving a written complaint, the CJA Panel Committee
will notify the Panel member and the Chief District Judge of the specific
allegations and will advise the Panel member whether the committee is
dismissing the complaint or commencing an investigation.
3. Response. A Panel member under review may be asked to respond in
writing and appear before the CJA Panel Committee. A Panel member
may also request the opportunity to appear or respond in writing.
4. Protective Action. Prior to completing its review and making its
recommendation, the CJA Panel Committee may take any other
protective action that is in the best interest of the Panel member’s clients
or the administration of this Plan, including without limitation,
recommending the Panel member’s suspension or removal from any
pending case or from the CJA Panel.
5. Investigation. Any investigation undertaken by the CJA Panel Committee
will be concluded within 60 days of receiving the initial complaint.
Should the investigation need to continue beyond this prescribed period,
the CJA Panel Committee must notify in writing both the Panel member
and the Chief District Judge. The CJA Panel Committee has the right to
examine witnesses, formally or informally, and take any other
investigative action deemed necessary and reasonable before making a
recommendation.
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6. Review and Recommendation. After investigation and review, the CJA
Panel Committee will make a recommendation in writing to the Chief
Judge and will contemporaneously provide the Panel member with a
copy of the recommendation. The recommendation may include:
a. closing the matter with no further action;
b. remedial action, including temporary or permanent removal of
the attorney from the Panel;
c. limiting the attorney’s participation to certain categories of cases;
d. directing the attorney to complete specific training requirements
before receiving further Panel appointments;
e. limiting the attorney’s participation to handling cases that are
directly supervised or overseen by another Panel member or
other experienced practitioner;
f. assigning a mentor;
g. directing the attorney to attend counseling or treatment for
substance abuse issues; or
h. any other appropriate remedial action.
7. Oversight of Remedial Action. Should the CJA Panel Committee
recommend any remedial action by the Panel member, the CJA Panel
Committee will establish a plan for overseeing completion of conditions
for full Panel reinstatement.
8. Final Disposition by the Court. The CJA Panel Committee will forward its
recommendation to the Chief District Judge for consideration and final
disposition by the judges of the Court. The Chief District Judge will
communicate a final disposition in writing to the attorney and the CJA
Panel Committee.
9. Confidentiality. Information acquired concerning complaints, including
the investigation and any potential disciplinary action, will remain
confidential unless otherwise directed by the Court or required by
applicable ethical standards. The CJA Panel Committee is obligated to
ensure the confidentiality of the committee’s records and the committee
members are obligated to ensure the confidentiality of their records.
10. Additional Appointments. If formal action is pending under Section VIII.F.
by the CJA Panel Committee or Court, that Panel member will not receive
any new appointments until the complaint is resolved.
11. Records Retention. The Court and CJA Supervising Attorney shall
maintain its records for 6 years after final disposition pursuant to The
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Guide to Judiciary Policy, Vol. 10, Chapter 6, Part F.1 (related to the
procurement of contract services).
IX. CJA PANEL MEMBER DUTIES
A. Standards and Professional Conduct
1. CJA Panel members must provide high-quality representation and be
guided in their practice by the Federal Adaptation of the National Legal
Aid and Defender Association Performance Guidelines for Criminal
Defense Representations and the ABA’s Criminal Justice Standards for the
Defense Function.
2. CJA Panel members must conform to the Eastern District of Washington’s
Local Rules and the Washington State Bar Association’s Rules of
Professional Conduct.
3. CJA Panel members may not require, request, or accept any payment or
promise of payment or any other valuable consideration for
representation under a CJA appointment. This includes funds for any
investigative, expert, or other services.
4. Counsel shall promptly notify the CJA Supervising Attorney in writing in
the event any action is taken by any court or bar association affecting the
standing of the attorney to practice before such court or bar association.
CJA Panel members must immediately notify the CJA Supervising
Attorney in writing if they are disbarred, suspended, or disciplined by any
bar association. CJA Panel members must also notify the CJA Supervising
Attorney in writing, within 7 days, if they are sanctioned, found in
contempt, or found to have provided ineffective assistance of counsel by
any state or federal court.
5. Appointed counsel must maintain contemporaneous time and
attendance records for all work performed, including work performed by
associates, partners, expert service providers, and support staff, as well
as expense records. Such records, which may be subject to audit, must be
retained for 3 years after approval of the final voucher for an
appointment. Time is to be recorded in one-tenth hour (6-minute)
increments.
6. Appointed counsel must, unless otherwise ordered by the Court, notify
all CJA expert service providers that they should keep contemporaneous
time records of their work in one-tenth hour increments. Appointed
counsel must notify expert service providers that CJA policies require
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them to maintain copies of their timekeeping records for 3 years after
approval of the final voucher for an appointment.
B. Training and Continuing Legal Education
1. CJA Panel members must complete training in the CJA automated
payment system (“eVoucher”) and the Court’s Case
Management/Electronic Case Files system (“CM/ECF”) prior to the
attorney’s first appointment.
2. CJA Panel members are expected to remain current with developments in
federal criminal defense law, practice, and procedure, including
electronic discovery techniques.
3. CJA Panel members must attend, virtually or in person, a minimum of 24
hours every 3 years, of training relevant to federal criminal practice, such
as events sponsored by the Federal Defenders and the CJA Supervising
Attorney. Training events sponsored by the Federal Defenders and the
CJA Supervising Attorney may or may not be CLE accredited by the WSBA.
4. 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 the facilities, resources, and technological
capability to effectively and efficiently manage assigned cases, including
the availability of office space to meet with clients and the technological
resources to receive, review, organize, and otherwise manage electronic
discovery and records.
2. CJA Panel attorneys must know and comply with the requirements of
CM/ECF and eVoucher, including the submission of requests (Form AUTH)
for investigative, expert, and other services. CJA Panel attorneys shall aim
to maintain competence with technology relevant to their practice and
maintain the minimum technology equipment requirements for CJA
counsel described in Appendix 2.
X. COUNSEL APPOINTMENT IN NON-CAPITAL CASES
A. 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
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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.
B. Number of Counsel
More than one attorney may be appointed in any case determined by the Court
to be unusual or complex, or when necessary in the interests of justice to ensure
high-quality representation. Co-counsel who are members of the CJA Panel will
be compensated at the non-capital CJA hourly rate. If a non-Panel attorney is
appointed as co-counsel, the Court will determine the hourly rate based on the
attorney’s experience and qualifications.
C. Mentee Counsel
Mentee counsel may be appointed as co-counsel in appropriate cases as
determined by the Court and the CJA Supervising Attorney, as provided in
Section XI.F below.
D. Appointment List
The CJA Supervising Attorney will maintain a current list of all CJA Panel attorneys, with
current office addresses, email addresses, and telephone numbers, as well as
statements of qualifications and experience.
E. Appointment Procedure
1. The CJA Supervising Attorney is responsible for overseeing the
assignment of cases to Panel attorneys in collaboration with the
Magistrate Judges. The CJA Supervising Attorney will maintain a record of
Panel attorney appointments and data reflecting the proportion of
appointments among the CJA Panel and Federal Defenders. A copy of
this list will be furnished to each District Judge and Magistrate Judge and
to the Clerk of Court upon request.
2. Assignment of cases to CJA Panel members will ordinarily be made on a
rotational basis; however, in a complex or unusual case, the CJA
Supervising Attorney may assign CJA counsel outside of the normal
rotation to ensure that the defendant has sufficiently experienced
counsel. The CJA Supervising Attorney has authority to determine
individual case assignments based on appropriate considerations.
3. To minimize travel, the CJA Supervising Attorney should try to assign CJA
Panel attorneys who are located reasonably near where the case will be
heard to avoid unnecessary travel time.
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F. Non-Panel Attorney Appointments
1. When the District Judge presiding over the case (or the Chief Judge if a
District Judge has not yet been assigned to the case) determines that the
appointment of an attorney who is not a member of the CJA Panel is in
the interests of justice, judicial economy, or continuity of representation,
or there is another circumstance warranting his or her appointment, the
attorney may be admitted to the CJA Panel pro hac vice and appointed to
represent the CJA defendant. In such cases, the Court will waive any pro
hac vice fee.
2. Consideration for preserving the integrity of the Panel selection process
suggests that such appointments should be made only in exceptional
circumstances. Further, the attorney, who may or may not maintain an
office in the District, should possess such qualities as would qualify the
attorney for admission to the District’s CJA Panel in the ordinary course
of Panel selection.
G. Continuing Representation
1. Once counsel is appointed under the CJA, counsel will continue the
representation until:
a. the matter is closed, including conclusion of any appellate or
certiorari proceedings;
b. substitute counsel has filed a notice of appearance;
c. an order is entered allowing the client to proceed pro se; or
d. the appointment is otherwise terminated by court order.
2. If trial counsel prefers to withdraw in favor of new counsel on appeal,
trial counsel will first file the notice of appeal in the District Court to
preserve the client’s right to appeal and then move to withdraw, asking
for the appointment of substitute counsel. Trial counsel should assess
whether continuity is in the best interests of the client and consistent
with counsel’s professional skills and obligations.
XI. CJA ATTORNEY COMPENSATION AND FUNDING FOR NEEDED SERVICES
A. Court Compensation Policies
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. In
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determining the reasonableness of out-of-court time, the Court must
consider three factors:
a. whether the work was performed;
b. whether the work performed was a reasonable means of
achieving the client’s aims in the litigation; and
c. whether the time spent to accomplish that work was reasonable.
2. Voucher reductions will be limited to mathematical errors; instances in
which work billed was not compensable, undertaken, or completed; and
instances in which the hours billed clearly exceed what was reasonably
required to complete the task.
3. Vouchers and funding requests for service providers and other litigation
costs will not be delayed or reduced to lessen Defender Services program
costs in response to adverse financial circumstances.
4. Absent extraordinary circumstances, the Court will act on compensation
claims within 30 days of submission.
5. Payment vouchers and amounts paid to counsel or service providers will
not be disclosed except as required by law or CJA Guidelines.
6. Counsel and service providers should refer to the District of Eastern
Washington Billing Guide for further information on specific billing
standards, rules, and policies.
B. Claim Submission
1. Claims for compensation from counsel or a service provider must be
submitted on the appropriate CJA form through the Court’s online
eVoucher system. Information regarding eVoucher is available on the
Court’s website. Interim claims for compensation from counsel or a
service provider should be submitted quarterly or at appropriate stages
of the litigation (following substantial motion practice, after a change of
plea, after a trial, etc.), if the amount of outstanding billable time exceeds
$5,000.
2. Claims for compensation by appointed counsel and all expert service
providers shall be submitted no later than 45 days after final disposition
of the case, unless good cause is shown. Every effort should be made to
encourage claim submission as soon as possible upon completion of
services rendered. While extremely late submissions may impact the
ability to adequately substantiate claims, voucher reductions based solely
on submissions outside the time limit are not authorized.
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C. Voucher Review Procedure
The CJA clerks will perform an initial technical review for accuracy and
compensability under the CJA Guidelines, Ninth Circuit CJA Policies and
Procedures, and the Ninth Circuit CJA Compensability Handbook. In determining
whether services provided by counsel are compensable, the guidelines for
ancillary appointment of counsel in Section IV.A.3 of this Plan may be
considered. After clerk review, vouchers will be forwarded for consideration and
action by the CJA Supervising Attorney, who will review claims for overall
reasonableness. Unless otherwise ordered, the voucher will then be sent to the
assigned district or magistrate judge for further approval.
D. Voucher Reductions and Independent Review Procedures
Claims for compensation under the CJA will not be reduced without affording
counsel notice and an opportunity to be heard unless the reductions are for
mathematical, typographical, or non-compensable reasons.
1. When contemplating a voucher reduction for other than mathematical or
technical reasons, the CJA Supervising Attorney will notify CJA counsel of
any proposed reduction and offer counsel the opportunity to justify the
submission.
2. If counsel indicates that the reduction is not contested, or if no response
is received within 10 days, the CJA Supervising Attorney will process the
reduced voucher.
3. If counsel responds and provides information justifying the claimed time
or expense, the voucher will be approved as submitted.
4. If after considering the additional information the CJA Supervising
Attorney concludes that the claimed time or expense remains unjustified,
the voucher will be forwarded to the presiding judge with the CJA
Supervising Attorney’s recommendation, and the additional information
provided by counsel. If the judge agrees with the CJA Supervising
Attorney’s recommended reduction, counsel may invoke the
independent review process for reductions over $1,000 by submitting a
written request within 10 days of the Court’s voucher reduction. Deadline
extensions may be granted for good cause. A request for independent
review shall be directed to the CJA Supervising Attorney and in turn will
be provided to the CJA Panel Committee for an independent review.
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5. If the CJA Panel Committee finds the request for review to be
meritorious, a supplemental voucher in the amount determined by the
CJA Panel Committee to be justified will be approved. The CJA
Supervising Attorney will notify counsel of the Committee’s findings.
E. Associate Counsel
Because in most cases only one CJA-compensated attorney is authorized for each
client representation (CJA Guidelines § 230.53.10(a)), appointed counsel may
utilize the services of an in-house or contract associate to assist with the
representation and are encouraged to use lower-billing associates, contract
lawyers, paralegals, or other means to minimize costs when lead attorney
expertise may not be required, such as for legal research and file review.
However, use of associates, contract lawyers, and paralegals must be pre-
approved. Requests must specify the tasks, the projected number of hours, the
hourly rate, and the total anticipated expenditure. In addition, by accepting
appointment pursuant to the CJA, appointed counsel is obligated to ensure that
the aggregate hours expended by appointed counsel and others working on the
case are reasonable and not duplicative. Associate counsel may appear in court
with the Court’s prior permission. Appointed counsel is ultimately responsible
for the representation.
F. Mentee Counsel
The Eastern District of Washington maintains a Mentorship Program which
allows Mentees the opportunity to gain knowledge and experience in the
practice of federal criminal defense, with the goal that the Mentee will
successfully apply to become a member of the CJA Panel.
1. The CJA Panel Committee will select a pool of Mentors from the CJA Panel.
2. The profile of a Mentor will be an experienced and respected member of
the Panel. Panel members who wish to be considered for mentoring duties
must agree to serve as Mentors to attorneys who are less experienced in
federal criminal practice in at least one felony assignment, if needed, and
must agree to mandatory reporting and attendance at additional yearly
training, including possible specialized training, as designated by the Court.
The Mentor is the primary attorney and, therefore, is responsible for the
representation, to both the CJA client and the Court.
3. In the typical Program case, the Mentor will receive a regular CJA
appointment in a matter which appears to present a full spectrum of
representation (e.g., bail and release; discovery review; guideline
calculation sentencing factors; plea negotiation; and research and writing).
The Mentor shall train and supervise the Mentee during each stage of the
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federal criminal prosecution. The Mentor shall have discretion regarding
the extent of the Mentee’s involvement depending on the unique needs of
the case and the experience of the attorney. The Mentor will have the
ultimate responsibility for any case involved in the Program, including the
final decision-making authority about legal strategy. The Mentor also will
have the primary responsibility for communication with the client.
4. The Mentee will be appointed as co-counsel and will be expected to and
permitted to appear and argue on the record as counsel for the defendant,
with the Mentor, as counsel of record, present. The Mentee may confer, on
behalf of the defendant and under the direction of the Mentor, as counsel
of record with the government; chambers; the U.S. Probation Office and
other agencies; the defendant’s family and friends; potential witnesses;
and interpreters. Under the direction of the Mentor, the Mentee may
participate in hearings and trials.
5. The Mentee shall serve in the training capacity for one year or through one
jury trial, whichever comes first, unless a presiding judge determines that
the Mentee needs additional Mentee training.
6. Both the Mentor and Mentee will submit their billings through the
automated payment process. The Mentor shall receive the current CJA
hourly rate; the Mentee shall receive the current rate set by the Court.
7. The only expenses allowed to be incurred by the Mentee are travel related
expenses, such as mileage and parking. Any other expenses, such as costs
associated with experts (including interpreters), investigators, reproduction
of transcripts/briefs, computer-assisted legal research, filing fees, etc., shall
not be reimbursable to the Mentee. Rather, it is the responsibility of the
Mentor to bear these expenses and seek reimbursement when
appropriate, as described in the pertinent portions of this Plan and the
Guide to Judiciary Policies and Procedure.
G. Investigative, Expert, and Other Services; Litigation Expenses
1. Financial Eligibility. Counsel for a person financially unable to obtain
investigative, expert, or other services necessary for an adequate defense
may request CJA funding 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 presiding judge or designee
must authorize the funding. (See Guide to Judiciary Policy, Vol 7, Part A;
Guidelines for Administering the CJA and Related Statutes, Chapter 3, §
310.10.10.)
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2. Applications. Requests to authorize funds for investigative, expert, and
other services (Form AUTH) must be submitted using eVoucher and must
not be disclosed, except with the consent of the person represented or as
required by law or CJA Guidelines.
3. Cost Considerations. CJA representation is provided at public expense.
Appointed counsel is expected to use lower-cost service providers such as
investigators or paralegals to undertake tasks not requiring attorney
expertise. In multi-defendant cases with multiple CJA Panel attorneys,
counsel must make all reasonable efforts to coordinate with each other to
reduce costs, including coordinating and sharing discovery and utilizing
shared investigators and other services to the extent possible, while
maintaining the best interests of the client. Once funding for investigative,
expert, or other specialized services has been approved, counsel is
responsible for communicating with the service provider to ensure
compliance with specific terms of the authorization and to ensure that
charges do not exceed the amount authorized. Counsel is required to
provide an engagement letter to the service provider specifying the terms
and limits of the engagement. The letter shall include a warning that fees
and costs may not exceed the authorized amount, absent court approval
for any additional amount. The letter shall also instruct the service provider
to maintain contemporaneous timekeeping records in one-tenth hour
increments, describing the work performed with specificity. The service
provider shall maintain such records even if the Court has approved a “flat
fee” compensation agreement. “Flat Fee” compensation is generally
disfavored and will only be authorized if the Court determines, in advance,
that the “flat fee” will clearly conserve public funds. If, at the conclusion of
the case, the Court determines that the service provider’s hourly fee rate
would have resulted in lower compensation than the “flat fee” rate, the
Court will revert to hourly compensation.
4. Geographic Proximity. To minimize travel and avoid unnecessary travel
time, when possible, counsel should select investigators and experts who
are located near where the case will be heard or where the proposed
services are to be performed if such providers are available.
5. Testifying Experts. Any experts testifying at a court proceeding shall be
paid for the actual number of hours they are in attendance at court, plus
their travel time and expenses.
6. Compliance. Counsel must comply with Judicial Conference policies set
forth in the CJA Guidelines, Ch. 3.
H. Voluminous Discovery
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Courts and attorneys should confer with the CJA Supervising Attorney, the Circuit
Case Budgeting Attorney, and the National Litigation Support Team in the Office
of Defender Services on cases for which discovery is unusually voluminous
and/or complex. The Court should refer to FRCP 16.1 to ensure that parties meet
and confer to discuss discovery production schedules and formats.
I. Case Budgeting and Litigation Planning
Consistent with CJA Guidelines, Ch. 2 §§ 230.26.10–20, CJA counsel are required
to use case-budgeting techniques in non-capital representations for which
combined attorney and service provider costs are likely to exceed the equivalent
of 300 times the prevailing CJA Panel attorney non-capital hourly rate. Case
budgets are recommended if the case is likely to exceed 150 times the prevailing
CJA Panel attorney non-capital hourly rate. The Court or appointed counsel
should contact the CJA Supervising Attorney or the Circuit Case Budgeting
Attorney to discuss whether a case may be appropriate for budgeting and the
procedures for submitting a case budget. The development of a case budget in
larger non-capital representations helps ensure that defense counsel receives
the resources necessary to effectively represent the accused. A case budget and
supporting documentation provides the reviewing court with sufficient
information to assess reasonableness, monitor fairness, and more effectively
oversee the expenditure of CJA funds. In all cases where counsel anticipates that
the case will exceed the statutory maximum or previously approved case budget,
counsel should submit a CJA-26 before the case maximum is exceeded to obtain
court approval to exceed the statutory maximum or any previously authorized
case budget.
J. Establish and Adhere to Approved Rates
The current maximum hourly rates for CJA Panel attorneys are established by
Congress, adopted by the Judicial Conference of the United States, and may be
found at 18 U.S.C. § 3006A(d)(1) as amended and incorporated in the CJA
Guidelines at §230.16(a). The current maximum hourly rates for paralegals,
investigators, and other service providers should not exceed the maximum rates
established by the Ninth Circuit unless otherwise approved by the Court. In the
interest of justice, the Court and the Chief Judge may find that the timely
procurement of necessary services could not await prior authorization of rates
that exceed the maximum rates established in this policy. In these
circumstances, nunc pro tunc approval may be granted.
K. Overhead Costs
The statutory CJA attorney hourly rate is intended to include compensation for
general overhead costs (CJA Guidelines § 230.66.20(a)). Therefore, except in
extraordinary circumstances (CJA Guidelines § 320.70.30), additional fees for
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non-compensable administrative tasks performed by counsel or other personnel,
rent, telephone service, and secretarial expenses associated with CJA
representation are not reimbursable (CJA Guidelines § 230.66.10(b)).
L. 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. This includes funds
for any investigative, expert, or other services.
XII. SPECIAL PROVISIONS FOR CAPITAL CASES
A. Capital Cases
For purposes of this Plan, “capital cases” are those involving the death penalty
and include (1) prosecutions under any provision of federal law carrying a
potential penalty of death; (2) direct appeals from cases wherein the death
penalty was imposed by a federal court; (3) post-conviction proceedings in which
an individual sentenced to death by a federal court is seeking to set aside or
vacate the conviction or sentence under 28 U.S.C. § 2255; and (4) habeas corpus
proceedings in which an individual sentenced to death by a state court is seeking
to set aside or vacate the conviction or sentence under 28 U.S.C. § 2254.
B. 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; CJA Guidelines, Ch.
6; and any applicable Local Rule or General Order promulgated by the Court.
C. Counsel Qualifications
1. In addition to the requirements for CJA Panel membership set out in
Section VIII of this Plan, counsel appointed in capital cases to represent
financially eligible persons will meet the statutory requirements set out in
18 U.S.C. §§ 3005 and 3599(b)-(d) as expanded upon below, as well as
any applicable Circuit rules.
2. All attorneys appointed in capital cases must (1) be well qualified as
demonstrated by their training, commitment to the defense of capital
cases, and distinguished prior criminal defense experience at the relevant
stage of the proceeding; (2) have sufficient time and resources to devote
to the representation, considering their current caseload and the
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extraordinary demands of a capital case; (3) meet all applicable
guidelines adopted by the American Bar Association concerning
representation of persons in death penalty cases; and (4) consult
regularly with the appropriate Death Penalty Resource Counsel project
available through the Defender Services division of the Administrative
Office of the United States Courts. Unless otherwise ordered by the
Court, at least one of the attorneys appointed must have been admitted
to practice in the Court in which the case will be prosecuted for not less
than five years and must have had not less than three years of experience
in the actual trial of felony prosecutions in that Court.
3. In trial-level capital cases requiring the appointment of “learned
counsel,” such counsel must meet the minimum standards in 18 U.S.C.
§§ 3005 and 3599(b) or (d). Learned counsel should have distinguished
prior experience in the trial, appeal, or post-conviction review of federal
or state death-penalty cases that, in combination with co-counsel, will
ensure high-quality representation. “Distinguished prior experience”
contemplates excellence, not simply prior experience.
4. In direct appeals and post-conviction proceedings under 18 U.S.C. § 2254
or 2255, appointed counsel must meet the minimum standards required
by 18 U.S.C. § 3599(c) or (d) and should have distinguished prior
experience in federal criminal appeals, capital appeals, federal post-
conviction proceedings, or capital post-conviction proceedings. At least
one of the attorneys appointed must have been admitted to practice in
the Ninth Circuit Court of Appeals for not less than five years and must
have had not less than three years of experience in the handling of
appeals in felony cases in the Court.
5. Out-of-district counsel, including Defender Organization staff, who
possess the requisite expertise may be considered for appointment in
capital cases to achieve high-quality representation.
6. 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 capital habeas
corpus relief may be appointed if the attorney is fully qualified. This
appointment may be in place of, or in addition to, the appointment of the
Federal Defenders or a CJA Panel attorney or an attorney appointed pro
hac vice. (See 18 U.S.C. § 3006A(a)(3).)
D. Appointment of Counsel
1. Number of Counsel in Federal Capital Cases. Under 18 U.S.C. § 3005, a
person charged with a federal capital offense is entitled to the
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appointment of two attorneys, at least one of whom shall be learned in
the law applicable to capital cases. Under 18 U.S.C. § 3599(a)(1)(B), if
necessary for adequate representation, more than two attorneys may be
appointed to represent a defendant in such a case. In habeas corpus
proceedings under 18 U.S.C. § 3599(a)(2), a financially eligible person
seeking to vacate or set aside a death sentence in proceedings under 28
U.S.C. § 2254 or 2255 is entitled to appointment of one or more qualified
attorneys. Due to the complex, demanding, and protracted nature of
death penalty proceedings, judicial officers should consider appointing at
least two attorneys.
2. Pre-Trial. No later than when a defendant receives a target letter alleging
the commission of a capital offense, or is charged with a federal criminal
offense for which the penalty of death is possible, the Court must appoint
two attorneys, at least one of whom meets the qualifications for “learned
counsel.” Consistent with Section IV.A.1 of this Plan, the Court may
appoint capitally qualified counsel for an individual whom, although
uncharged, is the subject of an investigation in a federal death-eligible
case. When appointing counsel, the Court must consider and give due
weight to the recommendations of the Federal Defenders, through its
Executive Director, and Death Penalty Resource Counsel and articulate
reasons for not doing so.
3. Direct Appeals. Counsel representing a death-sentenced federal
appellant should include at least one attorney who did not represent the
appellant at trial. Each trial counsel who withdraws should be replaced
with similarly qualified counsel to represent the defendant on appeal.
When appointing counsel, the Court must consider and give due weight
to the recommendations of the Federal Defenders, through its Executive
Director, and Federal Capital Appellate Resource Counsel and articulate
reasons for not doing so.
4. Post-Conviction Proceedings. In any post-conviction proceeding under 18
U.S.C. § 2255 or 2254, the Court will appoint the Capital Habeas Unit of
the Federal Defenders as lead counsel to represent financially eligible
persons seeking habeas corpus relief in state death penalty proceedings
under 28 U.S.C. § 2254, but may, when deemed appropriate by the Court,
appoint as lead counsel a qualified attorney who is not a member of the
Capital Habeas Unit. Upon request of the Capital Habeas Unit, the Court
also may appoint an attorney from the CJA Capital Panel or other
qualified attorney as second counsel. In the event of conflicts, existing
workload, or other special factors, if the Capital Habeas Unit is unable to
provide representation, it shall recommend to the Court attorneys from
the CJA Capital Panel to be appointed pursuant to 18 U.S.C. § 3005 or
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other applicable provisions of law. When appointing counsel, the Court
must consider and give due weight to the recommendations of the
Federal Defenders, through its Executive Director, and the appropriate
Resource Counsel project and articulate reasons for not doing so. For 28
U.S.C. § 2255 proceedings, appointment should take place, if possible,
prior to denial of certiorari on direct appeal by the United States
Supreme Court. For 28 U.S.C. § 2254 proceedings, appointment should
take place at the earliest time permissible by law to permit federal
counsel to avail themselves of the full statute-of-limitations period to
prepare a petition.
5. Attorney Qualification Waiver. Under 18 U.S.C. § 3599(d), the presiding
judicial officer may, for good cause, appoint an attorney who may not
qualify under 18 U.S.C. § 3599(b) or (c), but who has the background,
knowledge, and experience necessary to represent the defendant
properly in a capital case, giving due consideration to the seriousness of
the possible penalty and the unique and complex nature of the litigation.
E. Case Budgeting and Resources
All capital cases, unless staffed only by the Federal Defenders, must be
budgeted. As early as practicable after appointment, counsel or the Court
should refer the case to the CJA Supervising Attorney in consultation with the
Circuit CJA Case Budgeting Attorney. Questions about the appointment and
compensation of counsel and the authorization and payment of investigative,
expert, and other service providers in capital cases also may be directed to the
appropriate Death Penalty Resource Counsel project or the AO Defender
Services Office, Legal and Policy Division Duty Attorney at 202-502-3030.
XIII. EFFECTIVE DATE
This Plan will become effective when approved by the Judicial Council of the Ninth
Circuit.
ENTERED FOR THE COURT ON __________ _10/133_____________, 2023.
_________________________________________________________
Stanley A. Bastian, CHIEF JUDGE, EASTERN DISTRICT OF WASHINGTON
APPROVED BY THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT.
________________________________________________________
Mary H. Murguia, CHIEF JUDGE, NINTH CIRCUIT COURT OF APPEALS
February 29,
DATED ___________________________, 2024.
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APPENDIX 1: BYLAWS OF FEDERAL DEFENDERS OF EASTERN WASHINGTON
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APPENDIX 2: TECHNOLOGY REQUIREMENTS FOR THE EASTERN DISTRICT OF
WASHINGTON
Each lawyer in this District shall aim to maintain competence with technology relevant to
their practice. This will include working to keep abreast of changes in technology as it
relates to case management, discovery, investigation, and in-court advocacy. It will also
include understanding the benefits and risks associated with current and emerging
technology.
In accordance with the above mission, those attorneys, and their staff, appointed under
the CJA should be proficient in the use of e-mail programs, word processing,
spreadsheets, ECF filing, the searching of electronic data, or any other software
programs that may be used in any federal criminal case.
The following are minimum technology equipment requirements for CJA counsel:
• PC or Mac computer, including a DVD/CD writer, speakers, and USB ports to
utilize external hard drives and thumb drives
• Printer
• Scanner with ability to convert paper documents to PDF/A format
• Secure high-speed Internet connection
• A modern web browser that is compatible with CM/ECF and CJA eVoucher
software
• Multi-media player such as Windows Media Player
• Word processing program – Microsoft Word preferred
• Presentation, database, and spreadsheet software – similar to what is available
in the Microsoft Office Suite
• A PDF program with writing and reading capability, plus the ability to create
searchable PDF documents (OCR)
• Anti-virus software configured to automatically run security updates
• A Zip file application
• An individual e-mail address for the attorney that is private and secure
Regardless of whether CJA counsel use Apple or Windows based computers, their
computer hardware should support the minimum requirements for current releases of
the Windows operating system and Microsoft Office applications. Since some litigation
support programs do not work with Apple operating systems, CJA counsel who primarily
use Apple based computers should have access to a computer that uses a Windows
operating system. Attorneys should anticipate the need to upgrade their computer and
peripheral equipment a minimum of every five years. Upgrade decisions should be
based on what hardware and software will provide the best functionality and
compatibility with future versions of CM/ECF and CJA eVoucher.
NOTE: Computer equipment, software, and training are a part of each lawyer’s
overhead expenses and are not expenses that will be paid by the Court.
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