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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
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11 IN RE: AMENDED CRIMINAL JUSTICE GENERAL ORDER 10-23
ACT PLAN
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17 The Court hereby adopts the attached Amended Criminal Justice Act Plan for the United
18 States District Court Western District of Washington, as approved by the Judicial Council for the
19 Ninth Circuit on October 30, 2023.
20 This Amended Criminal Justice Act Plan shall take effect October 30, 2023, and
21 supersede this Court’s prior Plan.
22 The Federal Public Defender is directed to supply a copy of the Plan to all members of
23 the CJA Panel.
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GENERAL ORDER 10-23 - 1
1 IT IS SO ORDERED.
2 Dated this 3rd day of November, 2023.
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David G. Estudillo
5 Chief United States District Judge
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GENERAL ORDER 10-23 - 2
United States District Court
for the Western District of Washington
Criminal Justice Act Plan
Amended April 6, 2023
I. Authority
Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A,
and Guide to Judiciary Po!icv, Volume 7A (Guide), 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. 7 A, 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. 7 A, 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.
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
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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
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
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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;
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
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I. 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:
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;
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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.
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
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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
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
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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.
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
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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.
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.
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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.
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))).
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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.
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
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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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
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
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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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.
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. Review, Supervision, and Removal of CJA Panel Members
A. Membership on the CJA Panel is a privilege, not a right. A majority of the
judges of the district may remove a member of the CJA Panel at any time.
Periodically, the CJA Standing Committee will review CJA Panel attorneys
as described in Appendix A.
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B. A member of the CJA Panel who is suspended or disbarred from any state
or federal court will be immediately suspended from the Panel pending
review and removal proceedings by the Court.
C. A member of the CJA Panel may be suspended from new case
appointments by the Committee upon a vote of the majority of the voting
members of the Committee. A member of the CJA Panel may be removed
from the Panel due to deficient representation or misconduct at any time
upon a recommendation for removal by the Committee and vote of the
majority of the judges.
D. The Committee will investigate complaints about misconduct or deficient
representation regarding CJA Panel attorneys and make a
recommendation to the Court if a majority of voting members believe that
an attorney should be removed from the CJA Panel.
E. The Committee will provide the attorney with a written statement of
reasons and an opportunity to respond and meet with the Committee
before a suspension or recommendation of removal from the Panel. In
cases of suspension, the Committee will also inform the attorney of the
duration of their suspension and/or any requirements for lifting the
suspension.
F. If there are circumstances warranting immediate suspension, the
Committee may temporarily suspend an attorney prior to meeting with the
attorney. The Committee shall notify the Court whenever an attorney is
suspended and the reasons for the suspension. The Court shall then
decide whether to remove an attorney who has been suspended from
pending cases during the suspension.
G. In instances when a lesser remedy than suspension or removal is
appropriate, the Committee may decide to do one or more of the following
without involvement of the Court: place the attorney on probation, require
training, implement a performance improvement plan, assign a mentor to
the attorney or require co-counsel for pending or new cases, or take any
other action or impose any other conditions it deems appropriate.
H. While removal is considered final by the Court, an attorney may submit a
new application for Panel membership if they believe the issues leading to
removal have been adequately addressed. An application may be
submitted for a term beginning at least one full year after the removal or
non-renewal of the attorney’s panel membership.
I. None of these procedures create a property interest in being on or
remaining on the CJA Panel.
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J. Information regarding investigations and potential disciplinary actions will
remain confidential unless disclosure is required by applicable ethical
standards, court rules, regulations, or laws.
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 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. 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.
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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 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. The mentoring program, created by the
FPD and the Standing Committee, and approved by the District Court, is
set forth in Appendix D to this Plan.
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
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under the appointment, unless such payment is approved by order of the
Court.
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 a primary panel providing service for the
United States District Court in Tacoma and the United States District Court
in Seattle.
C. In addition to the primary panel, 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
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
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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.
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 7 A, § 220.20-.55.
Page 18
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.
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.
Page 19
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 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.
Page 20
Representations that are anticipated to exceed $100,000 should be
referred at the earliest opportunity to the circuit Case Budgeting Attorney
(CBA).
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. 7 A,
and, 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
Page 21
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.
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.
Page 22
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. APPROVED BY THE JUDICIAL COUNCIL ON OCTOBER 30, 2023
This Plan will become effective when approved by the Judicial Council of the
Ninth Circuit.
ADOPTED BY THE JUDGES OF THE WESTERN DISTRICT OF WASHINGTON ON
APRIL 6, 2023
______________________________________
DAVID G. ESTUDILLO
CHIEF UNITED STATES DISTRICT JUDGE
APPROVED BY THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT ON
OCTOBER 30, 2023
_____________________________________
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
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 primary panel includes not
less than 80 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
Appendix A 04/23 i
and Committee that panel lawyers actively participate in training and
accept appointments in numbers sufficient to remain current in the law.
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.
Ill. VOUCHER REVIEW
Whenever the Court is considering reducing a claim for compensation for
nonmathematical or non-technical reasons appointed counsel will be notified,
Appendix A 04/23 ii
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 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
Appendix A 04/23 iii
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.
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 FPO, 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
Appendix A 04/23 iv
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.
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 31.
Appendix A 04/23 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 i
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
APPENDIX C
PROVISIONS APPLICABLE IN CASES
INVOLVING THE DEATH PENALTY
Appointment of Counsel and Case Management in CJA Capital Cases
A. Applicable Legal Authority
The appointment and compensation of counsel in capital cases and the
authorization and payment of persons providing investigative, expert, and
other services are governed by 18 U.S.C. §§ 3005, 3006A, and 3599, and
Guide, Vol. 7A, Ch. 6.
B. General Applicability and Appointment of Counsel Requirements
1. Unless otherwise specified, the provisions of this section apply to
all capital proceedings in the federal courts, whether those matters
originated in a district court (federal capital trials) or in a state court
(habeas proceedings under 28 U.S.C. § 2254). Such matters
include those in which the death penalty may be or is being sought
by the prosecution, motions for a new trial, direct appeal,
applications for a writ of certiorari to the Supreme Court of the
United States, all post-conviction proceedings under 28 U.S.C.
§§ 2254 or 2255 seeking to vacate or set aside a death sentence,
applications for stays of execution, competency proceedings,
proceedings for executive or other clemency, and other appropriate
motions and proceedings.
2. Any person charged with a crime that may be punishable by death
who is or becomes financially unable to obtain representation is
entitled to the assistance of appointed counsel throughout every
stage of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction processes, together with
applications for stays of execution and other appropriate motions
and procedures, competency proceedings, and proceedings for
executive or other clemency as may be available to the defendant.
See 18 U.S.C. § 3599(e).
3. Qualified counsel must be appointed in capital cases at the earliest
possible opportunity.
Appendix C 04/23 i
4. Given the complex and demanding nature of capital cases, where
appropriate, the court will utilize the expert services available
through the Administrative Office of the U.S. Courts (AO), Defender
Services Death Penalty Resource Counsel projects (“Resource
Counsel projects”), which include: (1) Federal Death Penalty
Resource Counsel and Capital Resource Counsel Projects (for
federal capital trials), (2) Federal Capital Appellate Resource
Counsel Project, (3) Federal Capital Habeas § 2255 Project, and
(4) National and Regional Habeas Assistance and Training Counsel
Projects (§ 2254). These counsel are death penalty experts who
may be relied upon by the court for assistance with selection and
appointment of counsel, case budgeting, and legal, practical, and
other matters arising in federal capital cases.
5. The Federal Public Defender should promptly notify and consult
with the appropriate Resource Counsel projects about potential and
actual federal capital trial, appellate, and habeas corpus cases, and
consider their recommendations for appointment of counsel.
6. In appointing counsel in capital cases, judges should consider and
give due weight to the recommendations made by federal
defenders and resource counsel and articulate reasons for not
doing so.
7. The presiding judge may appoint an attorney furnished by a state or
local public defender organization or legal aid agency or other
private, non-profit organization to represent a person charged with
a capital crime or seeking federal death penalty habeas corpus
relief provided that the attorney is fully qualified. Such appointments
may be in place of, or in addition to, the appointment of a federal
defender organization or a CJA panel attorney or an attorney
appointed pro hac vice. See 18 U.S.C. § 3006A(a)(3).
8. All attorneys appointed in federal capital cases must be well
qualified, by virtue of their training, commitment, and distinguished
prior capital defense experience at the relevant stage of the
proceeding, to serve as counsel in this highly specialized and
demanding litigation.
9. All attorneys appointed in federal capital cases must have sufficient
time and resources to devote to the representation, taking into
account their current caseloads and the extraordinary demands of
federal capital cases.
10. All attorneys appointed in federal capital cases should comply with
the American Bar Association’s 2003 Guidelines for the
Appointment and Performance of Defense Counsel in Death
Appendix C 04/23 ii
Penalty Cases (Guidelines 1.1 and 10.2 et seq.), and the 2008
Supplementary Guidelines for the Mitigation Function of Defense
Teams in Death Penalty Cases.
11. All attorneys appointed in federal capital cases should consult
regularly with the appropriate Resource Counsel projects.
12. There should be no formal or informal non-statutory budgetary caps
on capital cases, whether in a capital trial, direct appeal, or habeas
matter.
13. All capital cases should be budgeted with the assistance of case-
budgeting attorneys and/or resource counsel where appropriate.
14. Questions about the appointment and compensation of counsel and
the authorization and payment of investigative, expert, and other
service providers in federal capital cases should be directed to the
AO’s Defender Services Office, Legal and Policy Division Duty
Attorney at 202-502-3030 or by email at
[email protected].
C. Appointment of Trial Counsel in Federal Death-Eligible Cases1
1. General Requirements
a. Appointment of qualified capital trial counsel must occur no
later than when a defendant is charged with a federal
criminal offense where the penalty of death is possible. See
18 U.S.C. § 3005.
b. To protect the rights of an individual who, although
uncharged, is the subject of an investigation in a federal
death-eligible case, the court may appoint capitally qualified
counsel upon request, consistent with Sections C.1, 2, and 3
of these provisions.
c. At the outset of every capital case, the court must appoint
two attorneys, at least one of whom meets the qualifications
for “learned counsel” as described below. If necessary for
adequate representation, more than two attorneys may be
1 The Judicial Conference adopted detailed recommendations on the appointment and
compensation of counsel in federal death penalty cases in 1998 (JCUS-SEP 98, p. 22).
In September 2010, the Defender Services Committee endorsed revised commentary to
the Judicial Conference’s 1998 recommendations. CJA Guidelines, Vol. 7A, Appx. 6A
(Recommendations and Commentary Concerning the Cost and Quality of Defense
Representation (Updated Spencer Report, September 2010)) (“Appx. 6A”) is available
on the judiciary’s website.
Appendix C 04/23 iii
appointed to represent a defendant in a capital case. See 18
U.S.C. § 3005.
d. When appointing counsel, the judge must consider the
recommendation of the Federal Public Defender, who will
consult with Federal Death Penalty Resource Counsel to
recommend qualified counsel. [In those districts without a
federal defender organization, the judge must, as required
by 18 U.S.C. § 3005, consider the recommendation of the
AO’s Defender Services Office.] See 18 U.S.C. § 3005.
e. In appointing counsel, judges should give due weight to the
recommendations made by federal defenders and resource
counsel and articulate reasons for not doing so.
f. To effectuate the intent of 18 U.S.C. § 3005 that the Federal
Public Defender’s recommendation be provided to the court,
the judge should ensure the Federal Public Defender has
been notified of the need to appoint capitally qualified
counsel.
g. Reliance on a list for appointment of capital counsel is not
recommended because selection of trial counsel should
account for the particular needs of the case and the
defendant, and be based on individualized recommendations
from the Federal Public Defender in conjunction with the
Federal Death Penalty Resource Counsel and Capital
Resource Counsel projects.
h. Out-of-district counsel, including federal defender
organization staff, who possess the requisite expertise may
be considered for appointment in capital trials to achieve
high quality representation together with cost and other
efficiencies.
i. In evaluating the qualifications of proposed trial counsel,
consideration should be given to their commitment to the
defense of capital cases, their current caseload including
other capital cases, and their willingness to effectively
represent the interests of the client.
2. Qualifications of Learned Counsel
a. Learned counsel must either be a member of this district’s
bar or be eligible for admission pro hac vice based on his or
her qualifications. Appointment of counsel from outside the
jurisdiction is common in federal capital cases to achieve
Appendix C 04/23 iv
cost and other efficiencies together with high quality
representation.
b. Learned counsel must meet the minimum experience
standards in 18 U.S.C. §§ 3005 and 3599.
c. Learned counsel should have distinguished prior experience
in the trial, appeal, or post-conviction review of federal death
penalty cases, or distinguished prior experience in state
death penalty trials, appeals, or post-conviction review that,
in combination with co-counsel, will assure high quality
representation.
d. “Distinguished prior experience” contemplates excellence,
not simply prior experience. Counsel with distinguished prior
experience should be appointed even if meeting this
standard requires appointing counsel from outside the
district where the matter arises.
e. The suitability of learned counsel should be assessed with
respect to the particular demands of the case, the stage of
the litigation, and the defendant.
f. Learned counsel must be willing and able to adjust other
caseload demands to accommodate the extraordinary time
required by the capital representation.
g. Learned counsel should satisfy the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of representation in capital cases.
3. Qualifications of Second and Additional Counsel
a. Second and additional counsel may, but are not required to,
satisfy the qualifications for learned counsel, as provided
above.
b. Second and additional counsel must be well qualified, by
virtue of their distinguished prior criminal defense
experience, training and commitment, to serve as counsel in
this highly specialized and demanding litigation.
c. Second and additional counsel must be willing and able to
adjust other caseload demands to accommodate the
extraordinary time required by the capital representation.
Appendix C 04/23 v
d. The suitability of second and additional counsel should be
assessed with respect to the demands of the individual case,
the stage of the litigation, and the defendant.
D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death
Penalty Cases
1. When appointing appellate counsel, the judge must consider the
recommendation of the Federal Public Defender, who will consult
with Federal Capital Appellate Resource Counsel to recommend
qualified counsel.
2. In appointing appellate counsel, judges should give due weight to
the recommendations made by federal defenders and resource
counsel and articulate reasons for not doing so.
3. Counsel appointed to represent a death-sentenced federal
appellant should include at least one attorney who did not represent
the appellant at trial.
4. Each trial counsel who withdraws should be replaced with similarly
qualified counsel to represent the defendant on appeal.
5. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital appeals to achieve high quality
representation together with cost and other efficiencies.
6. Appellate counsel, between them, should have distinguished prior
experience in federal criminal appeals and capital appeals.
7. At least one of the attorneys appointed as appellate counsel must
have the requisite background, knowledge, and experience
required by 18 U.S.C.§ 3599(c) or (d).
8. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
9. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to their commitment to the defense
of capital cases, their current caseload including other capital
cases, and their willingness to effectively represent the interests of
the client.
E. Appointment and Qualifications of Post-Conviction Counsel in Federal
Death Penalty Cases (28 U.S.C. § 2255)
Appendix C 04/23 vi
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2255 is entitled to
appointment of fully qualified counsel. See 18 U.S.C. § 3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at least
two attorneys.
3. In light of the accelerated timeline applicable to capital § 2255
proceedings, prompt appointment of counsel is essential. Wherever
possible, appointment should take place prior to the denial of
certiorari on direct appeal by the United States Supreme Court.
4. When appointing counsel in a capital § 2255 matter, the court
should consider the recommendation of the Federal Public
Defender, who will consult with the Federal Capital Habeas § 2255
Project.
5. In appointing post-conviction counsel, judges should give due
weight to the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
6. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital § 2255 cases to achieve high quality
representation together with cost and other efficiencies.
7. Local or circuit restrictions prohibiting capital habeas units (CHUs)
from engaging in cross-district or cross-circuit representation
should not be imposed without good cause. Every district should
have access to a CHU.
8. Counsel in § 2255 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
9. When possible, post-conviction counsel should have distinguished
prior experience in capital § 2255 representations.
10. In evaluating the qualifications of proposed post-conviction counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
11. In evaluating the qualifications of proposed post-conviction § 2255
counsel, consideration should be given to their commitment to the
defense of capital cases, their current caseload including other
Appendix C 04/23 vii
capital cases, and their willingness to effectively represent the
interests of the client.
F. Appointment and Qualifications of Counsel in Federal Capital Habeas
Corpus Proceedings (28 U.S.C. § 2254)
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2254 is entitled to the
appointment of qualified counsel. See 18 U.S.C. § 3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at least
two attorneys.
3. When appointing counsel in a capital § 2254 matter, the appointing
authority should consider the recommendation of the Federal Public
Defender who will consult with the National or Regional Habeas
Assistance and Training Counsel projects.
4. In appointing counsel in a capital § 2254 matter, judges should give
due weight to the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
5. Local or circuit restrictions prohibiting Capital Habeas Units (CHUs)
from engaging in cross-district or cross-circuit representation
should not be imposed without good cause. Every district should
have access to a CHU.
6. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital § 2254 cases to achieve cost and other
efficiencies together with high quality representation.
7. For federal counsel to avail themselves of the full statute of
limitations period to prepare a petition, the court should appoint
counsel and provide appropriate litigation resources at the earliest
possible time permissible by law.
8. Unless precluded by a conflict of interest, or replaced by similarly
qualified counsel upon motion by the attorney or motion by the
defendant, capital § 2254 counsel must represent the defendant
throughout every subsequent stage of available judicial
proceedings and all available post-conviction processes, together
with applications for stays of execution and other appropriate
motions and procedures, and must also represent the defendant in
such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant. See 18
U.S.C. § 3599(e).
Appendix C 04/23 viii
9. Counsel in capital § 2254 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
10. When possible, capital § 2254 counsel should have distinguished
prior experience in capital § 2254 representations.
11. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
12. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to proposed counsel’s commitment
to the defense of capital cases, their current caseload including
other capital cases, and their willingness to represent effectively the
interests of the client.
Appendix C 04/23 ix
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
CRIMINAL JUSTICE ACT PLAN
APPENDIX D
CJA MENTOR PROGRAM SUMMARY
The CJA Mentor Program is designed to familiarize attorneys with federal criminal
defense in order to increase the pool of qualified applicants for the CJA Panel and to
promote diversity on the CJA Panel. The CJA Administration of the Federal Public
Defender's Office will administer the Mentor Program.
The Mentor Program shall include two tiers. Applicants for both tiers must become
admitted to the United States District Court for the Western District of Washington and
the United States Court of Appeals for the Ninth Circuit upon acceptance into the
Mentor Program. They must have extensive experience in criminal law and a
demonstrated interest in representing individuals who lack the means to hire an
attorney. Applicants must also maintain a primary, satellite, or shared office in the
Western District of Washington and have sufficient resources and support to manage
CJA assignments. Qualified attorneys of any race, color, religion, sex, gender identity,
sexual orientation, age, national origin, or disability are encouraged to apply.
Tier I of the Mentor Program is intended for attorneys with little or no federal criminal
experience. It shall consist of appointment as associate counsel in two cases and
mandatory participation in training programs administered by the Federal Public
Defender. Participation in Tier I will be limited to the number of anticipated vacancies on
the CJA Panel at the time mentees are expected to complete the program.
Tier I mentees will be assigned to cases as close to the initiation of a case as possible,
and mentees must remain as counsel through the case resolution. Mentees are
expected to appear and argue on the record and participate in every aspect of the
cases to which they are assigned. Tier I mentors shall be the lead attorneys for these
cases, will have ultimate responsibility for the cases, and must train and supervise their
mentees and appear in court for all court appearances in cases to which they are
assigned pursuant to the Mentor Program.
Tier I mentees shall be compensated at a rate of $130 per hour for case-related work,
and their mentors shall be compensated at the prevailing CJA hourly rate.
Tier II of the Mentor Program is intended for attorneys who have some federal criminal
experience but who could still benefit from additional guidance. It shall consist of regular
case appointments on cases that appear at the time of appointment to be less complex.
Tier II mentees shall be assigned an experienced CJA panel attorney to serve as a
mentor to provide up to ten hours of guidance on case-related work. Tier II mentees
must regularly attend the FPO training programs for CJA panel mentees.
Appendix D 04/23 i
Tier II mentees and their mentors shall be compensated at the prevailing CJA
rate.
Applicants to the CJA Panel may be approved for membership to the CJA Panel without
participation in either tier of the Mentor Program if they already possess sufficient
federal criminal experience. Participants in the Mentor Program shall be selected and
designated to a tier by the CJA Standing Committee.
Participation in the Mentor Program does not guarantee future approval to be placed on
the CJA Panel, nor does the program have a guaranteed or set length of time to
complete. Participants in Tier I of the Mentor Program will be eligible to apply to the CJA
Panel or to Tier II of the Mentor Program after completing two second chair
appointments and the required training programs.
Mentees and mentors may be removed if they are unable to meet the expectations of
the Mentor Program as described above or if found to engage in unethical or illegal
conduct during participation in the Mentor Program.
Appendix D 04/23 ii
