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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
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9 In Re:
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AMENDED CRIMINAL JUSTICE ACT GENERAL ORDER
11 PLAN
NO. 05-19
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The Court hereby adopts the attached Amended Criminal Justice Act Plan for the United
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15 States District Court Western District of Washington, as approved by the Judicial Council for the
16 Ninth Circuit on May 29, 2019.
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This Amended Criminal Justice Act Plan shall take effect immediately and supersede this
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Court’s prior Plan.
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The Federal Public Defender is directed to supply a copy of the Plan to all members of
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DATED this 6th day of June 2019.
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A
RICARDO S. MARTINEZ
26 CHIEF UNITED STATES DISTRICT JUDGE
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United States District Court
for the Western District of Washington
Criminal Justice Act Plan
Amended March 2019
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 Western District of Washington
adopt this amended Plan for furnishing representation in federal court for
any person financially unable to obtain adequate representation.
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 (decodified at
18 U.S.C. § 3599), the Ninth Circuit Policies and Procedures, and
the 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 Court Executive, the Federal Public Defender’s
Office, 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, with the
policies of the Ninth Circuit Judicial Council, and with this Plan.
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2. The Federal Public Defender shall provide each private attorney
with a current copy of this Plan upon the attorney’s designation as a
member of the CJA panel of private attorneys (CJA Panel), and
each time the Plan is revised. The Federal Public Defender shall
maintain current copies of this Plan, the Western District of
Washington CJA Attorney Manual, and the Ninth Circuit Policies
and Procedures on its website.
III. Definitions
A. Representation
“Representation” includes counsel and investigative, expert, and
other services.
B. Appointed Attorney
“Appointed attorney” is an attorney designated to represent a
financially eligible person under the CJA and this Plan. Such
attorneys include private attorneys, the Federal Public Defender,
and staff attorneys of the Federal Public Defender Office.
C. CJA Administrator
“CJA Administrator” is a person designated by the Federal Public
Defender to administer the CJA Panel.
D. CJA Resource Counsel
“CJA Resource Counsel” (CJARC) is an attorney selected by the
Federal Public Defender in consultation with the CJA Standing
Committee and the Court. The CJARC reviews for recommendation
to the Court selected CJA attorney requests for expert, investigator,
and other services as well as requests for interim billing. The
CJARC assists in training the CJA Panel and provides support for
such other CJA Panel-related duties assigned by the FPD and the
CJA Standing Committee.
IV. Determination of Eligibility for CJA Representation
A. The determination of eligibility for representation under the CJA is a
judicial function to be performed by a judge after making appropriate
inquiries concerning the person's financial condition.
B. In every case in which appointment of counsel pursuant to 18 U.S.C.
§ 3006A(a) is appropriate, it is the duty of the judge to advise the party of
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his or her right to counsel. The judge shall appoint counsel promptly if it is
found that the party is financially unable to obtain an attorney, unless the
party waives his or her right to be represented by counsel.
V. Provision of Responsibility
A. Subject Matter Eligibility
1. Mandatory
Representation must be provided for any financially eligible person
who:
a. is charged with a felony, criminal contempt, 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, supervised release,
or parole, or faces a change of a term or condition of
probation, supervised release, or parole (unless the
modification sought is favorable to the probationer and the
government has not objected to the proposed change);
d. is under arrest, when such representation is required by law;
e. is subject to a mental condition hearing under 18 U.S.C.
chapter 313;
f. is subject to being held in custody as a material witness;
g. is charged with a capital offense or is seeking to set aside or
vacate a death sentence under 28 U.S.C. § 2254 or § 2255.
All appointments under this section shall be made pursuant
to Appendix C of this Plan or Local Rule CR104(d);
h. 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;
i. has been called as a witness before a grand jury or a court
that has the power to compel testimony and there is reason
to believe the witness risks self-incrimination, loss of liberty,
or contempt of court;
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j. is the subject of federal law enforcement interest and faces
the risk of federal charges;
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. §§ 2241, 2254, or 2255
other than to set aside or vacate a death sentence;
c. is charged with civil contempt and faces loss of liberty;
d. is proposed for processing under a pretrial diversion
program;
e. is held for international extradition under 18 U.S.C. chapter
209; or
f. is, under 18 U.S.C. § 983(b)(1), a person with standing to
contest the forfeiture of property in a judicial civil forfeiture
proceeding under a civil forfeiture statute, is financially
unable to obtain representation by counsel, and is
represented by counsel appointed under 18 U.S.C. § 3006A
in connection with a related criminal case. See Section
210.20.40 of the Guide.
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:
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a. to protect a constitutional right;
b. to contribute in some significant way to the defense of the
principal criminal charge;
c. to aid in preparation for the trial or disposition of the principal
criminal charge;
d. to enforce the terms of a plea agreement in the principal
criminal charge;
e. to preserve the claim of the CJA client to an interest in real
or personal property subject to civil forfeiture proceeding
under 18 U.S.C. § 983, 19 U.S.C. § 1602, 21 U.S.C. § 881,
or similar statutes, which property, if recovered by the client,
may be considered for reimbursement under 18 U.S.C.
§ 3006A(f); or
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 CJA Administrator 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.
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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, the CJA
Administrator.
(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
CJA Administrator.
(iii) Employees of the United States Attorney’s Office
must 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 CJA Administrator, the Federal Public Defender,
and CJA Counsel
(i) Immediately investigate and determine whether an
actual or potential conflict exists for the Federal Public
Defender or any private CJA counsel who may be
appointed to represent the accused.
(ii) In the event of an actual or potential conflict, the CJA
Administrator will assign counsel who does not have
an actual or potential conflict of interest.
(iii) If a conflict which requires CJA counsel to withdraw is
later discovered, counsel shall promptly notify the
Court and the CJA Administrator to facilitate the
timely appointment of other counsel.
(iv) When practicable, the Federal Public Defender will
discuss with the person who indicates that he or she
is not financially able to secure representation of 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 affidavit promptly presented before a magistrate
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judge or district judge of this Court for determination
of financial eligibility and appointment of counsel.
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.
(ii) When counsel has been appointed, the pretrial
services officer will provide counsel notice and
counsel will attend any interview of the defendant by
the pretrial services officer prior to the initial pretrial
release or detention hearing, unless the defendant, on
the advice of counsel, agrees to proceed with the
interview in the absence of counsel.
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 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 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.
VI. 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 judge or district judge;
3. when they are formally charged or notified of charges if formal
charges are sealed; or
4. when a magistrate judge or district judge otherwise considers
appointment of counsel appropriate under the CJA and related
statutes.
B. Court’s Responsibility
The Court, in cooperation with the Federal Public Defender and the
United States Attorney, will make such arrangements with federal,
state, and local investigative and police agencies to ensure timely
appointment of counsel.
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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.
VII. Provision of Representational Services
A. Federal Public Defender and Private Counsel
This Plan provides for representational services by the Federal
Public Defender and for the appointment and compensation of
private counsel from a CJA Panel list maintained by the CJA
Administrator in cases authorized under the CJA and related
statutes.
The Federal Public Defender is authorized under this Plan to
initially represent all persons arrested before the first appearance
and at bail hearings which take place on the date of initial
appearance.
B. Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the Federal Public Defender.
C. Apportionment of Cases
Where practical and cost effective, private attorneys from the CJA
Panel will be appointed in a substantial proportion of the cases in
which the accused is determined to be financially eligible for
representation under the CJA. “Substantial” will usually be defined
as a minimum of twenty-five percent (25%) of the annual CJA
appointments.
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D. Number of Counsel
More than one attorney may be appointed in any case when it has
been determined by the Court to be extremely difficult or the
interests of justice require appointment of more than one attorney.
E. Capital Cases
Procedures for appointment of counsel in cases where the
defendant is charged with a crime that may be punishable by death
or is seeking to vacate or set aside a death sentence in
proceedings under 28 U.S.C. §§ 2254 or 2255, are set forth in
Appendix C of this Plan.
VIII. Federal Public Defender Organization
A. Establishment
The Federal Public Defender is established in this district under the
CJA and is responsible for rendering defense services on
appointment throughout this district.
B. Standards
The Federal Public Defender must provide high quality
representation consistent with the best practices of the legal
profession and commensurate with those services rendered when
counsel is privately retained. See Polk County v. Dodson, 454 U.S.
312, 318 (1981) (“‘Once a lawyer has undertaken the
representation of an accused, the duties and obligations are the
same whether the lawyer is privately retained, appointed, or serving
in a legal aid or defender program.’” (quoting ABA Standards for
Criminal Justice section 4-3.9 (2d ed. 1980))).
C. Professional Conduct
The Federal Public Defender Office must conform to the highest
standards of professional conduct, including but not limited to the
Washington State Rules for Professional Conduct and the Code of
Conduct for Federal Public Defender employees.
D. Private Practice of Law
Neither the Federal Public Defender nor any Defender employee
may engage in the private practice of law except as authorized by
the Federal Public Defender Code of Conduct.
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E. Workload
The Federal Public Defender Office will continually monitor the
workloads of its staff to ensure high quality representation for all
clients.
F. Supervision of Defender Office
The Federal Public Defender will be responsible for the supervision
and management of the Federal Public Defender Office.
Accordingly, the Federal Public Defender will be appointed in all
cases assigned to that office for subsequent assignment to staff
attorneys at the discretion of the Federal Public Defender.
G. Administration of the Criminal Justice Act
In accordance with and subject to the provisions of this Plan and
further orders of the Court, authority to administer the Criminal
Justice Act is assigned and delegated to the Federal Public
Defender. It shall be the responsibility of the Federal Public
Defender, subject to the approval of the Court, to notify CJA Panel
attorneys of an appointment and the first date of appearance.
H. Training
The Federal Public Defender will assess the training needs of
Federal Public Defender staff and, in coordination with the CJA
Panel Attorney District Representative,1 the training needs of the
local panel attorneys, and provide training opportunities and other
educational resources. Such training will include presentations on
courtroom and office technology related to the defense of federal
criminal cases.
IX. CJA Panel of Private Attorneys
A. Formation of a Standing Committee to Oversee the Criminal Justice Act
Panel
1. The judges of the United States District Court for the Western
District of Washington authorize a Standing Committee to assist the
1 The CJA Panel Attorney District Representative (PADR) is a member of the district’s CJA
Panel who is selected by the local Federal Public 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.
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Federal Public Defender in the administration and oversight of the
CJA Panel. The Committee shall consist of six attorneys, each a
voting member. Four members of the Standing Committee shall be
selected by a majority vote of the judges of the Court. At least one
such attorney shall be from the area served by the United States
District Court in Tacoma. Members of the Committee shall serve
without compensation.2
2. The Federal Public Defender or his or her representative will be a
permanent member of the Committee. The district’s national CJA
Panel representative shall serve as a member of the Committee
during his or her term as district representative.
3. Membership on the Committee shall be for a term of three years.
Terms may be extended by the Court for an additional three years.
Members’ terms shall be staggered to ensure continuity on the
Committee.
4. The Committee shall meet at least four times per year or at any
time the Court asks the Committee to consider an issue. In addition
to reviewing CJA Panel membership, the Committee shall identify
and define any operating difficulties encountered in the
administration of the CJA Panel and make recommendations to the
Court for appropriate changes.
5. The Committee shall act consistent with the requirements of
Appendix A to this Plan in making decisions and recommendations
related to participation, training, and compensation of CJA Panel
lawyers.
6. The Committee shall assist and advise the Federal Public Defender
in devising and presenting training programs for the CJA Panel.
Such training shall include communication with CJA Panel
attorneys on substantive and procedural changes in the law, local
rules, administrative requirements, ethics requirements, electronic
discovery, and other matters affecting the CJA Panel attorneys, and
shall include regularly scheduled seminars for CJA Panel attorneys
as well as the private bar.
7. The Committee will be permitted to use the staff of the Federal
Public Defender for administrative and record-keeping matters.
2 The Court and the Federal Public Defender should make a diligent effort to ensure that the
composition of the Committee reflects the racial, ethnic, gender, and geographic diversity of the
district.
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However, the Committee is not authorized to make requests for
services that would incur financial obligations without prior approval
of the Court.
X. Prerequisites for Participation on the CJA Panel
A. The CJA Panel shall consist of attorneys recommended by the Standing
Committee and approved by a majority of the judges of the district,
pursuant to the procedures outlined in Appendix A.
B. CJA Panel attorneys must be admitted to practice and in good standing in
the State of Washington, the United States District Court for the Western
District of Washington, and the Ninth Circuit Court of Appeals. In addition
to bar membership, CJA Panel attorneys should have prior federal and/or
state criminal trial experience, experience with serious or complex criminal
cases, knowledge of the Sentencing Guidelines and the Bail Reform Act,
knowledge of other relevant areas of federal criminal practice, and/or
clinical experience or participation in trial advocacy programs. CJA Panel
attorneys must have the training and ability to conduct electronic filing,
receive and manage electronic discovery, and the ability to manage and
effectively utilize electronic case presentation equipment and software in
the courtroom.
C. CJA Panel attorneys must have resources and support sufficient to
manage CJA assignments, including the availability of office space to
meet with clients. This also includes the necessary technological
resources to receive, review, organize, and otherwise manage electronic
discovery and records.
D. Each CJA Panel attorney must carry professional malpractice insurance
with minimum limits of $200,000.00 for each occurrence.
XI. Periodic Review and Removal of CJA Panel Members
A. A majority of the judges of the district may remove a member of the CJA
Panel at any time.
B. Periodically, the Committee will review participating lawyers as described
in Appendix A.
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XII. Qualifications and Membership on the CJA Panel
A. Application
Application forms for membership on the CJA Panel are available
from the Federal Public Defender.
B. Equal Opportunity and Diversity
The CJA Standing Committee encourages all qualified attorneys to
apply for appointment to the Western Washington panels. The CJA
Standing Committee will utilize all available resources to encourage
diversity and inclusiveness in recruitment for its mentorship
program and in its recommendations to the Court for appointing
new panel members, including guidance from the Defender
Services Office of the Administrative Office of the U.S. Courts for
recruiting, interviewing, and selecting panel members.
C. Eligibility
1. Applicants for the CJA Panel must be members in good standing of
the federal bar of this district and the Ninth Circuit Court of Appeals.
2. Applicants must maintain a primary, satellite, or shared office in this
district.
3. Applicants must possess strong litigation skills and demonstrate
proficiency with the United States Sentencing Guidelines, federal
sentencing procedures, the Bail Reform Act, the Federal Rules of
Criminal Procedure, and the Federal Rules of Evidence.
4. 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.
5. 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
Standing Committee’s consideration.
D. Appointment to CJA Panel
After considering the recommendations of the CJA Standing
Committee, the chief judge will appoint or reappoint attorneys to the
CJA Panel. Due to the highly complex and demanding nature of
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capital and habeas corpus cases, special procedures will be
followed for the eligibility and appointment of counsel in such
cases. See Appendix C of this Plan.
E. Mentoring Program
The Federal Public Defender, in conjunction with the Standing
Committee, shall have a mentoring program to increase the pool of
qualified candidates for our CJA Panel.
XIII. Obligations of CJA Panel Members
A. In addition to meeting the training, qualifications, facilities, and technology
requirements established by the Standing Committee, CJA Panel
members are expected to:
1. have an office procedure in place that facilitates the prompt receipt
of information concerning appointment in a CJA case;
2. be qualified to represent an assigned client through the appellate
process and ancillary matters appropriate to the proceedings
unless or until relieved by order of the Court;
3. promptly notify the Standing Committee, in writing, in the event any
action is taken by any court or bar affecting the standing of the
attorney to practice before such court or bar;
4. participate actively in the representation of eligible individuals;
5. comply with the requirements of electronic filing and have sufficient
knowledge and technological capability to effectively and efficiently
manage assigned cases;
6. participate in training related to the filing of CJA vouchers, know
and abide by procedures related to requests for services under the
CJA, and be willing to undertake cost effectiveness measures
recommended by the Committee;
7. conform to the highest standards of professional conduct.
B. Appointed counsel may not require, request, or accept any payment or
promise of payment or any other valuable consideration for representation
under the appointment, unless such payment is approved by order of the
Court.
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C. If at any time after appointment counsel obtains information that a client is
financially able to make payment, in whole or in part, for legal or other
services in connection with the client’s representation, and the source of
the attorney’s information is not confidential or privileged, counsel will
promptly advise the Court.
D. In multi-defendant cases where multiple CJA attorneys are appointed,
counsel must make all reasonable efforts to coordinate with each other to
reduce costs, including coordinating and sharing discovery to the extent
possible and making joint applications for funding for investigators and
other services.
E. Appointed counsel are encouraged to use lower-billing associates,
contract lawyers, law clerks, investigators, paralegals, or other means to
minimize costs where lead attorney expertise may not be required, such
as for legal research and file review.
An appointed counsel may claim compensation for services
furnished by a partner or associate or, with prior authorization by
the Court, counsel who is not a partner or associate, within the
maximum compensation guidelines set forth in the Ninth Circuit
Policies and Procedures, separately identifying the provider of each
service.
XIV. Assignment of Cases to the CJA Panel
A. The Federal Public Defender shall be responsible for overseeing the
assignment of cases to CJA Panel attorneys. This function will be
performed by the CJA Administrator within the Federal Public Defender
Office.
B. Attorneys will be assigned to one of two primary panels, one providing
service for the United States District Court in Tacoma and the second
providing service for the United States District Court in Seattle. If the CJA
Administrator is unable to locate counsel from the list maintained in one
city, assignment will be made to the next available CJA Panel attorney on
the list maintained for the other city.
C. In addition to the two primary panels, the Federal Public Defender shall
maintain lists of attorneys who will provide representation for individuals
who appear before judges in outlying places that hold court located within
the district. Attorneys assigned to those lists shall be selected by the
Standing Committee in accordance with the procedures and requirements
of this Plan. Consistent with the terms and requirements of Appendix B
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and Appendix C, the Federal Public Defender shall maintain lists of
attorneys for assignment to appeals and capital cases.
D. The Federal Public Defender may create an emeritus CJA Panel.
Attorneys will be eligible for inclusion on the emeritus panel when they
have served with distinction on the active panels or have otherwise
demonstrated excellence in the practice of federal criminal defense and
wish to be active in CJA matters but are not able or willing to accept
appointments on a rotational basis due to other significant constraints on
their time. Members of the emeritus panel who are unable to take cases in
a given year are expected to contribute in other ways, such as serving as
mentors for other CJA Panel members and/or presenting at training
seminars. The Federal Public Defender shall review the emeritus panel at
least annually to ensure that all members remain capable and eligible for
inclusion.
E. Location of attorneys for individual cases shall be undertaken by the CJA
Administrator. To facilitate this process, the appropriate court agency shall
notify the CJA Administrator of the need for counsel as soon as possible.
The CJA Administrator shall locate counsel by contacting attorneys from
the appropriate list in rotational order. The CJA Administrator, in
cooperation with the Federal Public Defender, shall develop a method of
contacting attorneys that is most likely to reach them quickly.
F. Appointments should be made in a manner that results in both a balanced
and equitable distribution of appointments among members of the CJA
Panel, and quality representation for each CJA defendant. At the direction
of the Court or the Federal Public Defender, an attorney may be assigned
out of order for a case which requires particular expertise, is of particular
complexity or severity, or involves a client with unusual needs. If the
distribution of cases over the course of a year becomes unbalanced or
inequitable, the CJA Administrator, in conjunction with the Federal Public
Defender, may on occasion deviate from the rotational system by skipping
an attorney or attorneys to achieve a more balanced and equitable
distribution of assignments. Such deviation from the rotational order shall
be documented in CJA records.
G. Attorneys on the emeritus panel may be called for cases which require
particular expertise, are of particular complexity or severity, or involve
clients with unusual needs.
H. In the interests of justice, where continuity of representation is a factor or
other special circumstances exist, the Court may appoint an attorney who
is not on the CJA Panel. Such attorneys shall possess the experience and
character as would qualify them for admission to the district's CJA Panel in
the ordinary course.
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I. Assignment and compensation of counsel for new representations (e.g.,
revocation proceedings, mental condition hearings) and hybrid
representations (e.g., standby counsel) shall be made in accordance with
the requirements of the Guide, Vol 7A, § 220.20-.55.
J. The CJA Administrator shall maintain master lists of CJA appointments,
which will include the date of each appointment, the case name and the
date of each refusal (“pass”) by a CJA Panel attorney, and statistical
information reflecting the respective percentages of cases assigned to the
Federal Public Defender and the CJA Panel.
XV. Duties of CJA Panel Members
A. Standards and Professional Conduct
1. CJA Panel members must provide high quality representation
consistent with the best practices of the legal profession and
commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“‘Once a lawyer has undertaken the representation of an
accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or
defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980)).
2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, including but not limited to the
Washington State Rules for Professional Conduct.
3. A CJA Panel member must notify within 30 days the CJA
Administrator and the Federal Public Defender, as chair of the CJA
Standing Committee, when any licensing authority, grievance
committee, or administrative body has acted against the panel
member, or when a finding of contempt, sanction, or reprimand has
been issued against the panel member by any state or federal
court.
B. Training and Continuing Legal Education
1. Attorneys on the CJA Panel are expected to remain current with
developments in federal criminal defense law, practice, and
procedure, including the Recommendation for Electronically Stored
Information (ESI) Discovery Production in Federal Criminal Cases.
Page 19
2. Attorneys on the CJA Panel are expected to attend trainings
sponsored by the Federal Public Defender, including training on the
use of technology and electronic discovery.
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. A copy of these standards shall be posted on the
Federal Public Defender website.
4. CJA Panel members must attend continuing legal education
programs relevant to federal criminal practice and training relevant
to the management of electronic discovery and technology in the
courtroom during the three-year period preceding their review for
continued participation on the Panel.
5. Failure to comply with these training and legal education
requirements may be grounds for removal from the CJA Panel.
C. Facilities and Technology Requirements
1. CJA Panel attorneys must have facilities, resources, and
technological capabilities to effectively and efficiently manage
assigned cases and participate in regular training with respect to
the effective use of such technology.
2. CJA Panel attorneys must comply with the requirements of
electronic filing and CJA 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 the matter, including appeals or review by
certiorari, is closed; or until substitute counsel has filed a notice of
appearance; or until an order is entered allowing or requiring the
person represented to proceed pro se; or until the appointment is
terminated by court order. If trial counsel prefers to withdraw in
favor of new counsel for the appeal, trial counsel should move to
withdraw in the Court of Appeals and ask for the appointment of
Page 20
substitute counsel but only after filing the notice of appeal in the
district court and preserving the client’s rights in the appeal.
E. Case Budgeting
In non-capital representations of unusual complexity that are likely
to generate claims for compensation in excess of 300 times the
prevailing CJA Panel attorney non-capital hourly rate, rounded up
to the nearest thousand, the Court should require development of a
case budget consistent with the policy of the Ninth Circuit Judicial
Council and the Guide § 230.26.10-20. Counsel must notify the
Court as soon as possible if they anticipate that this 300-hour
threshold will be reached. Guide, Vol. 7A, Ch. 2, §§ 230.26.10–20;
Ninth Circuit CJA Policies and Procedures, § III.C.
Representations that are anticipated to exceed $100,000 should be
referred at the earliest opportunity to the circuit Case Managing
Attorney (CMA).
XVI. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
Providing fair compensation to appointed counsel is a critical
component of the administration of justice. CJA Panel attorneys
must be compensated for time expended in court and time
reasonably expended out of court and reimbursed for expenses
reasonably incurred.
B. 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. Any reductions in a voucher submitted by a CJA attorney should be
limited to mathematical errors, instances in which work billed was
not compensable or was not undertaken or completed, and
instances in which the hours billed were clearly in excess of what
was reasonably required to complete the task.
4. The CJA Administrator or their designee will review the claim for
mathematical errors and technical reasons, including whether the
work billed is compensable under the Judiciary Guide, Vol. 7A, and,
Page 21
if correct and compensable, will forward the claim for consideration
and action by the presiding judge.
5. For claims which are substantially in excess of the statutory limit,
the CJA Resource Counsel (CJARC) will also review the voucher
for reasonableness and make a recommendation to the Court. The
recommendation shall be included with the submission in the
eVoucher system for consideration and action by the presiding
judge.
6. Absent extraordinary circumstances, the Court should act on CJA
compensation claims within 14 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.
7. Except in cases involving mathematical and other technical
reasons, no claim for compensation submitted for services provided
under the CJA will be reduced without affording counsel notice and
the opportunity to be heard.
8. The Court, when contemplating reduction of a CJA voucher for
other than mathematical or technical reasons, will notify counsel
before cutting a request for compensation. At the request of CJA
counsel, the Court will refer the voucher to the Standing Committee
for review and recommendation before taking final action.
9. 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.
XVII. 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.
Page 22
B. Applications
Requests for authorization of funds for investigative, expert, and
other services must be submitted to the CJARC via CJA eVoucher
for review and recommendation to the judge designated to review
these requests and will not be reviewed by the presiding judge until
the conclusion of the proceedings when the final request(s) for
payment are made by counsel and the experts. Such funding
requests are ex parte and must not be disclosed except with the
consent of the person represented or as required by law or Judicial
Conference policy.
C. Compliance
Counsel must comply with Judicial Conference policies set forth in
the Guide, Vol. 7A, Ch. 3, and with the policies of the Judicial
Council of the Ninth Circuit.
D. Review of the Rejection of Requests for Services
In the event that a judge indicates an intention not to approve, in
whole or in part, for services requested or rendered under this
paragraph, counsel may request review and recommendation by
the Standing Committee pursuant to the procedures set forth in
Appendix A.
XVIII. Appointment of Counsel and Case Management in CJA Capital Cases
The appointment of counsel and case management in capital cases is set
forth in Appendix C to this Plan, and must be read in conjunction with
18 U.S.C. §§ 3005, 3006A, and 3599, the Guide, Vol. 7A, Ch. 6, and the
Criminal Justice Act Policies and Procedures for the Ninth Circuit adopted
on October 20, 2016.
XIX. Effective Date
This Plan will become effective when approved by the Judicial Council of
the Ninth Circuit.
Page 23
ADOPTED BY THE JUDGES OF THE WESTERN DISTRICT OF WASHINGTON
A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
APPROVED BY THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT ON MAY 29, 2019
__________________________________
CHIEF JUDGE, COURT OF APPEALS
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
APPENDIX A
OPERATION OF THE
CJA STANDING COMMITTEE
AMENDED MARCH 2019
I. RESPONSIBILITIES OF THE CJA STANDING COMMITTEE
A. The Standing Committee shall solicit applications for the CJA panels
from interested members of the bar of the Western District of Washington. The
Standing Committee shall promote participation on the panels in a manner which
facilitates and encourages racial, ethnic, and gender diversity, geographic balance,
and the inclusion of panel members who speak Spanish and other languages typically
spoken by residents of this district. The Committee shall consult the Defender
Services (DSO) Best Practices in devising a system for recruiting, interviewing, and
selecting panel members in order to achieve the goal of having a diverse CJA panel.
B. The Standing Committee shall compile all applications submitted by
attorneys wishing to participate on a CJA panel and shall periodically meet, at least
annually, to review the applications. For attorneys meeting the qualification standards
for inclusion on the panel, the Committee shall conduct such additional investigation
as is necessary to assure the Committee that the applicant has the requisite
character, standing in the bar, skill, and commitment to vigorous representation of the
accused to merit inclusion on the panel. Applicants who the Committee believes
should be added to a panel shall be referred to the Court with a recommendation
specifying which panel the Committee believes the applicant should be assigned to.
C. The Court may request the Standing Committee conduct additional
investigation of an applicant and the Committee shall act in accordance with directions
from the Court. Final decisions regarding inclusion on or removal from the panel will
be made by a majority of the judges of the district.
D. The Standing Committee shall ensure that the Tacoma panel includes
not less than twelve members and the Seattle panel includes not less than fifty
members. The emeritus, appellate, and capital case panels will have no size
restriction.
E. The Standing Committee shall monitor the size and operation of the
panels to assure that they meet the needs of current case load requirements. In
addition, the Committee, in conjunction with the CJA Administrator, shall monitor the
level of participation in training and case assignments of lawyers on the panels. It is
the expectation of the Court and Committee that panel lawyers actively participate in
training and accept appointments in numbers sufficient to remain current in the law.
Appendix A 03/19 i
F. Every year, the Committee will review a third of the members of the
panel, so that the entire CJA panel is reviewed every three years. During the review,
participating lawyers will be asked if they wish to remain on the panel. For those
attorneys wishing to remain on the CJA panel, the Committee shall solicit input from
the Court concerning the quality of representation provided by those lawyers. The
Committee will also consider whether the CJA panel member has declined cases
during the review period, how many cases the member has accepted and declined,
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 the Plan and
its appendices. If a lawyer has been accepting appointments in sufficient numbers and
has consistently provided high quality representation, he or she will likely remain on
the panel.
G. If the Court or Committee has reservations concerning the quality of
representation provided by a panel lawyer, the Court may direct the Committee to take
such action as is necessary to remedy any perceived deficiency. If the Court
determines a panel lawyer has not demonstrated the skill or character necessary to
participate on the panel, it may direct that the lawyer be removed.
II. TRAINING REQUIREMENTS AND MENTORSHIP
A. The Standing Committee shall, in conjunction with the Federal Public
Defender and the CJA Resource Counsel (CJARC), provide regularly scheduled and
on-going training for members of the CJA panels. The Standing Committee should
establish training requirements and monitor compliance of panel members.
B. Attorneys new to the CJA panel will be assigned mentors by the
Standing Committee unless the attorney has significant and exemplary federal
criminal defense experience. Mentors will be lawyers from the panel or the Federal
Public Defender’s Office. Mentorship will continue for not less than one year. During
that time, the mentor will assist and monitor the new panel lawyer and report to the
Committee concerning his or her progress and ability. Input received may be used to
assess training needs and/or continued participation on the panel.
III. VOUCHER REVIEW
Whenever the Court is considering reducing a claim for compensation for non-
mathematical or non-technical reasons appointed counsel will be notified, afforded the
opportunity to comment and the option of referring the matter to the CJA Standing
Committee for review and preparation of a report and recommendation to the
presiding judge. The Committee shall meet as soon as practicable to review the
questioned claim. The Committee will review documentation related to the claim, the
record of the proceedings, and such other materials as necessary to assess the
reasonableness of the claim. The Committee shall submit a written recommendation
to the Court and counsel within thirty days of the request for review. The Committee’s
recommendation shall be guided by policies and standards for compensation as
Appendix A 03/19 ii
described in the Guide published by the Administrative Offices of the United States
Courts and this CJA Plan. In addition, the Committee shall consider, among other
factors, the following:
1. Whether the case goes to trial or ends with a guilty plea.
2. The number of defendants in the case.
3. Unusual characteristics of the defendant (unable to speak English, mental
health issues, particularly uncooperative).
4. Location of the defendant (e.g., amount of travel required for counsel to
meet with the defendant) and whether the defendant is in custody.
5. Type and number of crimes charged.
6. Complexity or novelty of legal issues (requiring unusually great amount of
legal research).
7. Number of witnesses presented by all parties at the trial or hearing.
8. Amount of pretrial discovery and investigation required, number of
documents, open or closed file case.
9. Number of motions in the case, number and length of hearings on motions
and other hearings, nature of hearings (evidentiary or mere argument).
10. Amount of trial preparation required.
11. Length of trial.
12. Length and complexity of sentencing hearing and severity of potential
sentence.
Following receipt of the Standing Committee’s report and recommendation, the
judge may request additional information from counsel or the Committee. The Court
should act promptly in finally certifying payment.
IV. COST EFFECTIVENESS MEASURES
A. The Standing Committee shall explore and develop cost effectiveness
measures for CJA representations. The Committee shall identify and provide to CJA
lawyers strategies including:
1. Use of a pool of experts and investigators who have agreed, in
nonspecialized cases, to provide their services at a discounted or most
reasonable cost.
Appendix A 03/19 iii
2. Use of a brief bank developed by the Federal Public Defender and made
available to panel attorneys.
3. Use of the internet and websites to facilitate information sharing, briefing,
and training.
4. Identification of paralegals and document technicians to provide assistance
in summarizing transcripts and organizing documents in complex litigation
cases in a cost efficient manner.
5. Assistance to panel lawyers in identifying “government rates” for
transportation and travel related expenses for attorneys, witnesses, and
experts through the panel administration team in the Federal Public
Defender’s Office.
6. Strategies for contact with the United States Attorney’s Office designed to
discuss and develop cost efficiencies associated with bail requests,
discovery disputes, management of complex cases, or other matters that
draw on the resources of the CJA.
7. Creation of relationships with the United States Marshal, Pretrial Services,
and the Probation Office to develop cost effective measures with those
agencies.
B. The Standing Committee, in cooperation with the FPD, CJA
Administrator, and CJA Resource Counsel, shall promptly provide panel lawyers with
current information concerning national and Ninth Circuit policies and initiatives
related to cost effectiveness, fiscal constraints, and changes in rules related to claims
for compensation.
C. The Committee, with the Federal Public Defender, will consider methods
for reducing the cost of prison visits by panel members, interpreters, and experts, and,
where appropriate, coordinate with the Bureau of Prisons to effectuate cost saving
measures.
V. YEAR-END REPORT
The Standing Committee shall prepare and provide a brief year-end report to
the Chief Judge of the Western District of Washington describing the fiscal year
operation of the panels. The report must include a summary of CJA payments to panel
members, information regarding all complaints received about panel members and
their disposition, information regarding training conducted, and the number of times
each panel attorney “passed” on appointments during the preceding year. The report
must also summarize the Committee’s annual review of panel members as described
in this Appendix.
Appendix A 03/19 iv
The CJA Administrator shall provide relevant statistical information to the
Standing Committee for inclusion in its yearly report of operations. The report of
operations shall cover the fiscal year and be submitted not later than January 31st.
Appendix A 03/19 v
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
APPENDIX B
I. ADMINISTRATION OF APPELLATE PANEL
A. The Federal Public Defender and CJA Administrator shall maintain a list
of qualified individuals to handle appointments on appeal. The list shall include
individuals with a proven commitment to the defense function, who are learned in the
practice of federal criminal law and have demonstrated excellence in writing skills.
B. In selecting individuals for placement on the appellate panel, the Federal
Public Defender shall take steps to ensure appropriate diversity and geographic
balance within the Western District of Washington and the inclusion of panel members
who speak Spanish and other languages typically spoken by residents of this district.
Appendix B 03/19 vi
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
APPENDIX C
PROVISIONS APPLICABLE IN CASES
INVOLVING THE DEATH PENALTY
I. STATUTORY AUTHORITY
A. The appointment and compensation of counsel and the approval and
payment of persons providing investigative, expert, and other services governed by
18 U.S.C. § 3005, 18 U.S.C. § 3599, Local Rule CR104(d), Volume 7A, Chapter 6, §§
610.10-630.60 of the Guidelines for Administration of the CJA (Guide), and the Ninth
Circuit Judicial Council CJA Policies and Procedures.
B. Detailed recommendations on the appointment and compensation of
counsel in federal death penalty cases were adopted by the Judicial Conference on
September 15, 1998 (JCUS-SEP 98, p. 22). In September 2010, the Defender
Services Committee endorsed revised commentary to the 1998 recommendations.
The recommendations and the accompanying revised commentary are set forth in
Appx. 6A (Recommendations Concerning the Cost and Quality of Defense
Representation (Updated Spencer Report, September 2010)) to Part A of the Guide.
C. The provisions of this Appendix apply to all capital cases whether
originating in a state court or a United States District Court.
II. APPOINTMENT OF COUNSEL IN CAPITAL CASES
A. At the outset of every capital case, the Court shall appoint two attorneys,
at least one of whom is experienced in and knowledgeable about the defense of death
penalty cases. 18 U.S.C. § 3005, 18 U.S.C. § 3599(a)(l) & (2).
B. While Courts should not appoint more than two attorneys unless
exceptional circumstances and good cause are shown, appointed counsel may, with
prior Court authorization, use the services of attorneys who work in association with
them, provided that the employment of such additional counsel (at a reduced hourly
rate) diminishes the total cost of representation or is required to meet time limits that
could not otherwise have been met.
Appendix C 03/19 vii
III. PROCEDURES FOR APPOINTMENT OF COUNSEL IN CAPITAL CASES
A. Appointment of counsel shall be made after consultation with and upon
the recommendation of the Federal Public Defender.
B. In evaluating the qualifications of counsel considered for appointment,
the Federal Public Defender shall consider the:
1. minimum experience standards set forth in 18 U.S.C. § 3599(b)-(d),
18 U.S.C. § 3005, and other applicable laws or rules including Local Rule
104(d);
2. qualification standards endorsed by bar associations and other legal
organizations regarding the quality of legal representation in capital cases;
3. recommendations of capital resource counsel, other federal public and
community defender organizations, and local and national criminal defense
organizations;
4. proposed counsel’s commitment to the defense of capital cases; and
5. availability and willingness of proposed counsel to accept the appointment
and to represent effectively the interests of the client.
C. Courts should ensure that all attorneys appointed in federal death
penalty cases are well qualified, by virtue of their prior defense experience, training,
and commitment, to serve as counsel in this highly specialized and demanding
litigation.
D. Ordinarily, “learned counsel” (see 18 U.S.C. § 3005) 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.
E. To facilitate this process the Federal Public Defender shall maintain a list
of counsel qualified to undertake capital representations.
F. The provisions of this section shall take effect whenever a defendant is
charged with a federal criminal offense for which the penalty of death is possible,
unless the government issues written notice at or before the initial appearance that the
government will not seek the death penalty or unless the Court orders that death is not
an applicable punishment upon conviction. If such written notice by the government
that it will not seek death as punishment is later withdrawn, the provisions set forth in
this section shall be implemented as soon after the withdrawal of the notice as is
practicable. In the event that counsel for the defendant has already been appointed or
Appendix C 03/19 viii
retained at the time the government either withdraws its notice not to seek the death
penalty or files a notice of intention to seek the death penalty, the provisions of this
section shall apply to permit the appointment of additional or substitute counsel if
necessary to comply with the qualification standards contained above and in
applicable rules and statutes. For cases originating in state court and subject to the
provisions of 28 U.S.C. § 2254, appointment of counsel shall be made as soon as
practicable after the state conviction is deemed final in order to assure timely filing in
this district.
G. Ordinarily the attorneys appointed to represent a death-sentenced
federal appellant should include at least one attorney who did not represent the
defendant at trial. Appointment of appellate counsel shall be made upon
recommendation of the Federal Public Defender who shall consider the attorney’s
experience in federal criminal appeals and capital appeals among other relevant
factors.
H. In appointing counsel in post-conviction habeas proceedings, the Court
shall consider the recommendation of the Federal Public Defender and the attorney’s
experience in such matters.
I. Under 18 U.S.C. § 3599(d), the presiding judicial officer, for good cause,
may 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. Such
appointments should be made after consultation with the Federal Public Defender.
J. In the interest of justice and judicial economy, unless precluded by a
conflict of interest, the Court should typically continue the appointment of state post-
conviction counsel if qualified under Guide, Vol. 7A, § 620.60.
K. The appointment of counsel in capital cases extends “throughout every
subsequent stage of judicial proceedings” as defined in 18 U.S.C. § 3599(e) and the
Guide, Vol. 7A, § 620.70.
IV. COMPENSATION IN CAPITAL CASES
A. Statutory maxima do not apply in capital cases. The Court will set the
rate at an amount not to exceed compensation limits set by the Judicial Conference
and reported in the Guide, Vol. 7A, § 620.60. In the interest of justice and in
furtherance of relevant statutory provisions regarding qualifications of counsel in
capital cases, the Court should compensate counsel at a rate sufficient to ensure
adequate compensation.
B. Pursuant to the Guide, Courts must discuss with appointed counsel, at
the outset of the case, the preparation and submission of a budget that will be subject
Appendix C 03/19 ix
to modification in light of facts and developments that emerge as the case proceeds.
The budget should be prepared with the assistance of case budgeting attorneys
and/or capital resource counsel where appropriate. The budgeting process should be
guided by § III of the Criminal Justice Act Policies and Procedures adopted by the
Judicial Council of the Ninth Circuit and those set forth in the Guide, Vol. 7A, §§
640.20-40.
Appendix C 03/19 x
