B-202336.OM, JUL 31, 1981

B-202336.OM: Jul 31, 1981

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WHICH PROVIDES FOR A SYSTEM OF PUBLIC DEFENDERS TO BE PAID AT PUBLIC EXPENSE IN ORDER THAT DEFENDANTS WHO ARE UNABLE TO AFFORD COUNSEL WILL RECEIVE ADEQUATE REPRESENTATION. I UNDERSTAND FROM OUR DISCUSSIONS THAT YOUR AUDIT WILL EXAMINE THE CONSISTENT IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT BY THE DISTRICT COURTS. INCLUDING WHETHER INDIVIDUALS WHO ARE RECEIVING ASSISTANCE FROM A COURT-APPOINTED ATTORNEY ARE. THESE ISSUES ARE DISCUSSED IN ATTACHMENT I. MY COMMENTS ARE CONTAINED IN ATTACHMENT II. I HAVE KEPT THOSE COMMENTS BRIEF SINCE SOME ANALYSIS OF THE LEGISLATIVE HISTORY ALSO IS CONTAINED IN ATTACHMENT I. PROVIDES FOR THE LEGAL REPRESENTATION OF DEFENDANTS WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE IN CRIMINAL CASES IN FEDERAL COURTS.

B-202336.OM, JUL 31, 1981

SUBJECT: ANALYSIS OF THE CRIMINAL JUSTICE ACT PROVIDING FOR PUBLIC DEFENDERS (CODE 188520; FILE B-202336)

AUDIT MANAGER, GGD - RONALD BERTEOTTI:

THIS RESPONDS TO YOUR REQUEST FOR AN ANALYSIS OF THE CRIMINAL JUSTICE ACT, 18 U.S.C. 3006A, WHICH PROVIDES FOR A SYSTEM OF PUBLIC DEFENDERS TO BE PAID AT PUBLIC EXPENSE IN ORDER THAT DEFENDANTS WHO ARE UNABLE TO AFFORD COUNSEL WILL RECEIVE ADEQUATE REPRESENTATION. I UNDERSTAND FROM OUR DISCUSSIONS THAT YOUR AUDIT WILL EXAMINE THE CONSISTENT IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT BY THE DISTRICT COURTS, INCLUDING WHETHER INDIVIDUALS WHO ARE RECEIVING ASSISTANCE FROM A COURT-APPOINTED ATTORNEY ARE, IN FACT, UNABLE TO AFFORD COUNSEL. THESE ISSUES ARE DISCUSSED IN ATTACHMENT I. BECAUSE OF OUR EARLIER CONVERSATIONS ON THE APPLICATION OF THE ACT TO POST-CONVICTION HEARINGS, THE ANALYSIS INCLUDES A DISCUSSION OF THE NEED FOR COUNSEL AT PAROLE AND PROBATION REVOCATION HEARINGS.

I ALSO REVIEWED THE LEGISLATIVE HISTORY OF THE ACT PREPARED BY YOUR STAFF. MY COMMENTS ARE CONTAINED IN ATTACHMENT II. I HAVE KEPT THOSE COMMENTS BRIEF SINCE SOME ANALYSIS OF THE LEGISLATIVE HISTORY ALSO IS CONTAINED IN ATTACHMENT I.

LEGAL REPRESENTATION OF DEFENDANTS UNDER THE CRIMINAL JUSTICE ACT

THE CRIMINAL JUSTICE ACT (CJA), 18 U.S.C. SEC. 3006A, PROVIDES FOR THE LEGAL REPRESENTATION OF DEFENDANTS WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE IN CRIMINAL CASES IN FEDERAL COURTS. THE ACT, IN PART, IMPLEMENTS THE SIXTH AMENDMENT GUARANTEE OF THE RIGHT OF THE ACCUSED TO ASSISTANCE OF COUNSEL BY REQUIRING EACH UNITED STATES DISTRICT COURT TO CREATE AND IMPLEMENT A DEFENDER SYSTEM FOR ELIGIBLE PERSONS WHO ARE (1) CHARGED WITH A FELONY OR MISDEMEANOR (EXCLUDING A PETTY OFFENSE AS DEFINED IN 18 U.S.C. SEC. 1(3)), OR WITH AN ACT OF JUVENILE DELINQUENCY WHICH WOULD CONSTITUTE A FELONY OR MISDEMEANOR IF COMMITTED BY AN ADULT, OR WITH A VIOLATION OF PROBATION; (2) UNDER ARREST, IF REPRESENTATION IS REQUIRED BY LAW; (3) SUBJECT TO REVOCATION OF PAROLE, IN CUSTODY AS A MATERIAL WITNESS, OR SEEKING COLLATERAL RELIEF; OR (4) ENTITLED TO APPOINTMENT OF COUNSEL UNDER THE SIXTH AMENDMENT, OR BY FEDERAL LAW. THIS EXCLUSION FOR PETTY OFFENSES IS RELEVANT ONLY TO THE EXTENT THAT A CONVICTION WOULD NOT RESULT IN A SENTENCE OF IMPROVEMENT BECAUSE OF THE SUPREME COURT'S RULINGS IN ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972) AND SCOTT V. ILLINOIS, 440 U.S. 367 (1979) (DISCUSSED LATER IN THIS ATTACHMENT), THAT THE CONSTITUTIONAL RIGHT TO COUNSEL APPLIES WHENEVER A CONVICTED DEFENDANT WILL BE IMPRISONED. THE ACT PROVIDES FOR THE USE OF INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY FOR AN ADEQUATE DEFENSE, AND REQUIRES EACH DISTRICT TO DEVELOP A PLAN WHICH PROVIDES FOR REPRESENTATION BY PRIVATE ATTORNEYS. THE PLAN ALSO MAY PROVIDE FOR REPRESENTATION BY ATTORNEYS FURNISHED BY A BAR ASSOCIATION, LEGAL AID AGENCY, AND/OR A DEFERDER ORGANIZATION. EACH DISTRICT PLAN MUST BE APPROVED BY THE JUDICIAL COUNCIL OF THE CIRCUIT. A REPORT OF THE APPOINTMENT OF COUNSEL WITHIN EACH JURISDICTION MUST BE SUBMITTED TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (A. O.), WHICH IS AUTHORIZED TO ISSUE RULES AND REGULATIONS GOVERNING THE OPERATION OF PLANS CREATED PURSUANT TO THE ACT.

ESTABLISHMENT OF FEDERAL DEFENDER ORGANIZATIONS

THE ORIGINAL CJA, ENACTED IN 1964, PROVIDED FOR REPRESENTATION OF DEFENDANTS BY PRIVATE ATTORNEYS, A LOCAL BAR ASSOCIATION OR LEGAL AID AGENCY. IT DID NOT PROVIDE FOR ATTORNEYS FURNISHED BY A DEFENDER ORGANIZATION. SOME CONCERN WAS EXPRESSED ABOUT A CONFLICT OF INTEREST ARISING FROM THE APPOINTMENT OF A FEDERAL DEFENDER BY THE SAME GOVERNMENT WHICH PROSECUTES THE DEFENDANT, AND THE POTENTIAL FOR THE PUBLIC DEFENDER BEING SUBJECT TO THE CONTROL OF THE TRIAL COURT OR THE EXECUTIVE BRANCH.

A COMPREHENSIVE STUDY OF THE 1964 ACT, FN1 COMMISSIONED BY THE DEPARTMENT OF JUSTICE AND THE JUDICIAL CONFERENCE OF THE UNITED STATES IN 1967, CONCLUDED THAT -

"THERE IS A DEMONSTRATED NEED FOR SOME TYPE OF FULL-TIME SALARIED FEDERAL DEFENDER LAWYERS ON AN OPTIONAL BASIS IN CERTAIN DISTRICTS, ESPECIALLY THE LARGE URBAN DISTRICTS ***."

THE REPORT ALSO RECOMMENDED THAT PUBLIC DEFENDERS NOT BE DIRECTLY SUPERVISED BY THE JUDGES WHO HEAR CRIMINAL CASES, AND THAT THE POWER OF APPOINTMENT OF THE FEDERAL DEFENDER NOT REST WITH THE COURT BEFORE WHICH THE DEFENDER MUST PRACTICE, BUT WITH THE JUDICIAL COUNCIL OF THE CIRCUIT. THE CJA WAS AMENDED IN 1970 TO PROVIDE FOR REPRESENTATION BY TWO TYPES OF DEFENDER ORGANIZATIONS. ONE WAS A FEDERAL PUBLIC DEFENDER ORGANIZATION (FPDO), TO BE SUPERVISED BY A FEDERAL PUBLIC DEFENDER (FPD); THE OTHER WAS A COMMUNITY DEFENDER ORGANIZATION (CDO), TO OPERATE AS A NONPROFIT DEFENSE COUNSEL SERVICE.

FEDERAL PUBLIC DEFENDER ORGANIZATION

THE FPDO OPERATES UNDER THE GUIDANCE OF THE DISTRICT COURT AND THE APPELLATE COURT. THIS GUIDANCE EXISTS ONLY TO THE EXTENT THAT THE DISTRICT COURTS MAY PROVIDE FOR AN FPDO IN ITS PLAN AND MADE RECOMMENDATIONS TO THE JUDICIAL COUNCIL ON THE APPOINTMENT OF THE FPD. THE ACT PROVIDES THAT THE FPD SHALL BE A FULL-TIME, SALARIED ATTORNEY APPOINTED FOR 4 YEARS BY THE JUDICIAL COUNCIL OF THE CIRCUIT. WHILE THERE IS SOME INVOLVEMENT OF THE JUDICIARY, IT WAS ANTICIPATED THAT THE FPDO WOULD BE INDEPENDENT OF BOTH THE FEDERAL JUDICIARY AND PROSECUTION SYSTEMS. FN2 THE FPDO IS FINANCED FROM DIRECT APPROPRIATIONS BASED ON A BUDGET SUBMITTED TO THE A. O.

THE FPD IS AUTHORIZED TO APPOINT A STAFF OF FULL-TIME ATTORNEYS. THE SIZE OF THE STAFF IS SUBJECT TO APPROVAL BY THE JUDICIAL COUNCIL OF THE CIRCUIT, AND NEITHER THE FPD NOR THE STAFF MAY ENGAGE IN THE PRIVATE PRACTICE OF LAW WHILE SERVING IN THEIR RESPECTIVE POSITIONS. THE FPD IS COMPENSATED AT A RATE NOT TO EXCEED THAT OF THE UNITED STATES ATTORNEY AND HIS STAFF AT A RATE NOT TO EXCEED THAT OF SIMILARLY QUALIFIED AND EXPERIENCED ATTORNEYS IN THE OFFICE OF THE UNITED STATES ATTORNEY.

THE STATUTE ESTABLISHES NO QUALIFICATIONS FOR THE FPD OR FOR STAFF ATTORNEYS. (IT ALSO SHOULD BE RECOGNIZED THAT THERE ARE NO STATUTORILY ESTABLISHED CRITERIA FOR JUDGES AND U. S. ATTORNEYS.) GUIDANCE IS PROVIDED BY THE GUIDELINES FOR THE ADMINISTRATION OF THE CRIMINAL JUSTICE ACT (GUIDELINES), WHICH WERE ISSUED BY THE ADMINISTRATIVE OFFICE OF THE U. S. COURTS, AND APPROVED BY THE JUDICIAL CONFERENCE OF THE UNITED STATES. SECTION 4.02(A) OF THE GUIDELINES PROVIDES AS FOLLOWS:

"THE FEDERAL PUBLIC DEFENDER AND HIS STAFF SHALL BE SUBJECT TO THE PROVISIONS OF SECTIONS 2104 AND 2105 OF TITLE 5, UNITED STATES CODE. IN DETERMINING QUALIFICATIONS, THE PUBLIC DEFENDER SHALL BE SCREENED IN THE SAME MANNER AS IS REQUIRED FOR UNITED STATES ATTORNEYS."

SECTION 4.02(A), LIKE THE CJA, DOES NOT PROVIDE SPECIFIC CRITERIA FOR DETERMINING WHETHER THE FPD AND HIS STAFF ARE QUALIFIED. WHILE AT FIRST BLUSH IT MAY SEEM REASONABLE TO SUGGEST THAT THE STATUTE OR THE GUIDELINES ESTABLISH MORE SPECIFIC QUALIFICATION REQUIREMENTS, IT MAY BE DIFFICULT TO DEMONSTRATE THAT THE ABSENCE OF MORE SPECIFIC CRITERIA RESULT IN HARDSHIPS ON DEFENDANTS.

COMMUNITY DEFENDER ORGANIZATIONS

A CDO IS DEFINED IN 18 U.S.C. SEC. 3006A AS "A NONPROFIT DEFENSE COUNSEL SERVICE ESTABLISHED AND ADMINISTERED BY ANY GROUP AUTHORIZED BY THE DISTRICT COURT PLAN TO PROVIDE REPRESENTATION." THE GUIDELINES ONLY REQUIRE THAT THE CDO'S BY-LAWS "DEMONSTRATE THAT IT IS AN ORGANIZATION WITH A PROFESSIONAL AND FISCAL RESPONSIBILITY CAPABLE OF PROVIDING ADEQUATE REPRESENTATION PURSUANT TO THE ACT" (SECTION 4.02(B)).

NEITHER THE STATUTE NOR THE GUIDELINES ESTABLISH ANY QUALIFICATIONS FOR THE CDO ATTORNEYS ASSIGNED TO CJA CASES. UNLIKE THE FEDERAL PUBLIC DEFENDER ORGANIZATIONS, THE CDO IS NOT REQUIRED TO LIMIT ITS PRACTICE TO THE DEFENSE OF FEDERAL CRIMINAL CASES. THIS TYPE OF ORGANIZATION ALSO CONDUCTS STATE CRIMINAL DEFENSE AND CIVIL LEGAL AID CASES. FN3 CDO ATTORNEYS ARE APPOINTED TO CJA CASES SOLELY BY THE ORGANIZATION. SUCH AN ASSIGNMENT PROCEDURE DIFFERS FROM THE PROCEDURES APPLICABLE TO THE FEDERAL PUBLIC DEFENDER ORGANIZATIONS AND PRIVATE ATTORNEYS FOR WHICH THERE IS SOME DIRECT OR INDIRECT INVOLVEMENT OF THE JUDICIARY. WE DO NOT KNOW WHETHER THE INVOLVEMENT OF THE JUDICIARY SOLELY THROUGH THE INCLUSION OF A CDO IN THE DISTRICT COURT PLAN IS ADEQUATE TO ASSURE THAT CDO ATTORNEYS ARE COMPETENT. HOWEVER, IT DOES NOT NECESSARILY FOLLOW THAT THE ABSENCE OF DIRECT JUDICIAL INVOLVEMENT CAUSES A HARDSHIP ON THE DEFENDANT'S ABILITY TO OBTAIN COMPETENT COUNSEL.

PRIVATE ATTORNEYS

SECTION 3006AA) OF TITLE 18 REQUIRES THAT PRIVATE ATTORNEYS PROVIDE REPRESENTATION IN A SUBSTANTIAL PROPORTION OF THE CASES. THE GUIDELINES REQUIRE THAT PRIVATE ATTORNEYS "BE DESIGNATED OR APPROVED BY THE DISTRICT COURT" AND THAT THEY "SHOULD SERVE AT THE PLEASURE OF THE COURT" (SUBSECTION 2.01(D)). THE SELECTION PROCESS AND THE QUALIFICATIONS FOR PRIVATE ATTORNEYS MAY VARY BY DISTRICT BECAUSE THERE IS NO SPECIFIC CRITERIA IN THE STATUTE OR THE GUIDELINES.

FOR EXAMPLE, IN SOME DISTRICTS, LOCAL BAR ASSOCIATIONS AND LEGAL AID AGENCIES SUBMIT TO THE COURT LISTS OF ATTORNEYS WHOM THEY DEEM COMPETENT, AND FROM WHICH THE COURT MAKES FINAL SELECTIONS. IN OTHER DISTRICTS, ALL PRIVATE ATTORNEYS WHO PRACTICE BEFORE THE DISTRICT COURT AUTOMATICALLY ARE MEMBERS OF A PANEL FROM WHICH THE CHIEF JUDGE MAY GRANT EXEMPTIONS FROM SERVICE ON THE PANEL. ELSEWHERE, THE PANEL IS MADE UP OF ATTORNEYS WHO VOLUNTEER TO SERVE AS APPOINTED COUNSEL.

IN CONNECTICUT, THE CHIEF JUDGE OF THE DISTRICT INVITED ALL MEMBERS OF THE FEDERAL BAR TO VOLUNTEER AND MADE SPECIAL EFFORTS TO SECURE THE MEMBERSHIP OF THE MOST PROMINENT MEMBERS OF THAT BAR, SUCH AS THE DEANS AND PROFESSORS OF PRESTIGIOUS AREA LAW SCHOOLS AND SENIOR PARTNERS OF THE MOST REPUTABLE LAW FIRMS. CONSEQUENTLY, OTHER AREA ATTORNEYS WILLINGLY VOLUNTEERED TO SERVE ON PANELS OF SUCH DISTINCTION.

SOME DISTRICTS IN WHICH MEMBERSHIP IS MORE SELECTIVE HAVE ESTABLISHED DETAILED ADMISSION REQUIREMENTS. IN THE DISTRICT OF COLUMBIA, FOR EXAMPLE, ATTORNEYS COMPLETE A BACKGROUND AND EXPERIENCE QUESTIONNAIRE WHICH IS REVIEWED BY THREE MAGISTRATES. AN INTERVIEW ALSO IS CONDUCTED BY A MAGISTRATE, AFTER WHICH RECOMMENDATIONS ARE SUBMITTED TO THE DISTRICT COURT JUDGES, WHO SELECT THE ATTORNEYS FOR THE PANEL.

IN THE DISTRICT OF SOUTHERN CALIFORNIA, PANEL SELECTION REQUIREMENTS INCLUDE A WRITTEN APPLICATION; 6-12 MONTHS OF LEGAL EXPERIENCE; AN APPRENTICESHIP OF AT LEAST TWO FELONY TRIALS CONDUCTED UNDER THE DIRECT SUPERVISION OF A QUALIFIED ATTORNEY; COMPLETION OF AN EDUCATIONAL PROGRAM IN FEDERAL CRIMINAL LAW; AND AN ABSENCE OF STRONG OBJECTION BY A JUDGE TO THE APPOINTMENT. IN MARYLAND, PANEL MEMBERSHIP REQUIRES AT LEAST 1 YEAR OF CRIMINAL COURT EXPERIENCE AS A PRACTICING ATTORNEY OR AS A LAW CLERK. APPLICANTS MUST SUBMIT TO THE COURT A LETTER ALONG WITH A RESUME OF QUALIFICATIONS. THE COURT THEN ESTABLISHES THE PANEL AND MAKES ADDITIONS AND DELETIONS AS NECESSARY. FOR A DISCUSSION OF THE STATE PLANS PREVIOUSLY DISCUSSED, SEE THE COMPTROLLER GENERAL'S DECISION, "ADMINISTRATION OF THE CRIMINAL JUSTICE ACT BY U. S. COURTS AND THE D. C. SUPERIOR COURT" (B-179849, NOV. 21, 1974). FN5

BY CONTRAST, THE VIRGINIA PLAN REQUIRES THE JUDGE "HAVING PRIMARY JURISDICTION" WHERE THE COURT IS LOCATED TO DESIGNATE THE PANEL OF PRIVATE ATTORNEYS WITH ASSISTANCE FROM STATE OR LOCAL BAR ASSOCIATIONS AND LEGAL AID SOCIETIES. THE JUDGE ALSO PERIODICALLY REVIEWS AND REVISES THE LIST OF PANEL ATTORNEYS. NO PRIOR EXPERIENCE IN THE TRIAL OF CRIMINAL CASES IS REQUIRED, AND AN ATTORNEY NEED NOT BE ADMITTED TO PRACTICE IN FEDERAL COURT IN ORDER TO APPEAR BEFORE A MAGISTRATE. FN6 EVEN LESS SELECTIVE ARE THE PLANS OF THE DISTRICTS OF EASTERN MICHIGAN AND WESTERN MISSOURI, WHERE SELECTION IS BASED ONLY UPON AN ATTORNEY'S DESIRE TO SERVE AND HIS ADMITTANCE TO THE BAR.

THE PANELS IN MANY DISTRICTS INCLUDE ATTORNEYS WHO HAVE LITTLE, IF ANY, EXPERIENCE IN FEDERAL CRIMINAL TRIALS. SOME DISTRICTS DIVIDE PANEL ATTORNEYS INTO LEVELS ACCORDING TO THE ATTORNEYS' EXPERIENCE AND ASSIGN CASES ACCORDING TO COMPLEXITY. IN THE DISTRICT OF COLUMBIA, FOR EXAMPLE, THERE ARE THERE ARE THREE LEVELS OF PANEL ATTORNEYS. THE FIRST LEVEL CONSISTS OF ATTORNEYS WHO HAVE EXPERIENCE IN MORE THAN FIVE FEDERAL FELONY CASES, AND THEY ARE ASSIGNED ALL TYPES OF CASES. LEVEL TWO ATTORNEYS HAVE EXPERIENCE IN TWO TO FIVE FEDERAL FELONY CASES, AND ARE ASSIGNED TO ALL KINDS OF FELONY CASES EXCEPT CAPITAL CASES. LEVEL THREE ATTORNEYS HAVE EXPERIENCE IN LESS THAN TWO FEDERAL FELONY TRIALS AND ARE APPOINTED AS CO- COUNSEL. APPOINTMENTS TO A HIGHER LEVEL PANEL ARE MADE AS THE ATTORNEY OBTAINS THE REQUIRED EXPERIENCE. FN7 THIS SYSTEM PERMITS LESS EXPERIENCED ATTORNEYS WILLING TO SERVE AS DEFENSE COUNSEL TO GAIN EXPERIENCE.

THE EASTERN AND WESTERN DISTRICTS OF WASHINGTON HAVE A SYSTEM SIMILAR TO THAT OF THE DISTRICT OF COLUMBIA AND PROVIDE FOR TWO LEVELS OF PANEL ATTORNEYS. THE FIRST CONSISTS OF EXPERIENCED LAWYERS WHO ARE ASSIGNED THE MORE DIFFICULT CASES OR THOSE LIKELY TO GO TO TRIAL, AND THE SECOND CONSISTS OF LESS EXPERIENCED ATTORNEYS WHO ARE ASSIGNED MORE ROUTINE CASES. IN THE NORTHERN DISTRICT OF TEXAS, PANEL ONE ATTORNEYS HAVE LESS THAN 3 YEARS OF EXPERIENCE, AND WERE ASSIGNED AS UNCOMPENSATED CO COUNSEL AS OF 1969 WHEN OAKES COMPLETED HIS STUDY, WHILE THOSE WHO HAVE MORE THAN 3 YEARS OF EXPERIENCE ARE MEMBERS OF THE GENERAL PANEL. THE BI-LEVEL PANEL ATTORNEY SYSTEM OF THE NORTHERN DISTRICT OF ILLINOIS OPERATES DIFFERENTLY THAN THOSE DISCUSSED ABOVE BECAUSE ITS LESS EXPERIENCED ATTORNEYS ARE ASSIGNED THE EXCESS CASES AFTER ASSIGNMENTS OF FULL CASE LOADS HAVE BEEN MADE TO THE MORE EXPERIENCED "DUTY-DAY" LAWYERS. WE DO NOT KNOW WHETHER CASE COMPLEXITY IS CONSIDERED IN MAKING ASSIGNMENTS FROM THE "EXCESS CASE" CATEGORY. IN ADDITION TO THE METHODS OF ASSIGNMENT DISCUSSED ABOVE, SOME DISTRICTS ASSIGN CASES TO ANY PARTICIPATING ATTORNEY WHO HAPPENS TO BE PRESENT IN THE COURTROOM AND VOLUNTEERS TO TAKE THE CASE.

ASSIGNMENT BY ROTATION IS AN ALTERNATIVE WHICH PROVIDES FOR A MORE SYSTEMATIC PROCEDURE. THE VARIOUS TYPES OF ROTATION METHODS INCLUDE APPOINTMENT BY -

1. BI-ANNUAL ASSIGNMENTS

2. SEQUENCE OF COURT APPEARANCES

3. AVAILABILITY OF THE ATTORNEYS, EACH RECEIVING AN EQUAL NUMBER OF OPPORTUNITIES FOR ASSIGNMENT;

4. SEQUENTIAL ASSIGNMENT ACCORDING TO THE PANEL LIST; AND

5. VOLUNTARY ACCEPTANCE OF ASSIGNMENTS ON A PARTICULAR DAY (AS OPPOSED TO THE DUTY-DAY ASSIGNMENT BY WHICH THE ATTORNEY ACCEPTS ALL CASES ASSIGNED ON HIS OR HER "DUTY-DAY"). A DISTRICT WHICH USES THE ROTATION METHOD NEVERTHELESS MAY DISREGARD ITS ASSIGNMENT SYSTEM WHEN A DIFFICULT CASE REQUIRES APPOINTMENT OF THE MOST QUALIFIED ATTORNEY AVAILABLE.

WE DO NOT KNOW WHETHER ANY OF THESE SYSTEMS RESULT IN INADEQUATE REPRESENTATION SIMPLY BECAUSE THERE IS NO SPECIFIC CRITERIA TO EVALUATE THE ATTORNEY'S COMPETENCY. IT WOULD BE VERY DIFFICULT TO SHOW THAT THE ABSENCE OF CRITERIA RESULTS IN THE APPOINTMENT OF PANEL ATTORNEYS WHO ARE NOT CAPABLE OF PROVIDING ADEQUATE REPRESENTATION IN FEDERAL CRIMINAL CASES.

RIGHT TO APPOINTED COUNSEL

ONE ISSUE THAT IS AUDITABLE IS THE CRITERIA FOR DETERMINING THE FINANCIAL ELIGIBILITY OF THE ACCUSED FOR COURT APPOINTED COUNSEL. MORE DIFFICULT QUESTIONS ARE THE PROPER TYPES OF CASES FOR THE COURTS TO APPOINT COUNSEL FOR THOSE WHO ARE FINANCIALLY UNABLE TO AFFORD THEIR OWN ATTORNEYS, AND THE TIMING OF THE APPOINTMENT OF COUNSEL. BOTH DETERMINATIONS AFFECT THE ABILITY OF THE DEFENDANT TO OBTAIN ADEQUATE REPRESENTATION. PRIOR TO THE APPOINTMENT OF COUNSEL, THE INDIVIDUAL MUST BE DETERMINED TO BE "FINANCIALLY UNABLE TO OBTAIN ADEQUATE REPRESENTATION." FN8 EVEN IF THE ACCUSED IS INDIGENT, IT ALSO MUST BE DETERMINED WHETHER APPOINTED COUNSEL IS AUTHORIZED UNDER THE STATUTE.

THE GUIDELINES PROVIDE PROCEDURES FOR DETERMINING A PERSON'S ELIGIBILITY FOR COURT-APPOINTED COUNSEL:

"FACTFINDING. COUNSEL SHOULD BE PROVIDED TO A PERSON AS SOON AS FEASIBLE AFTER HE IS TAKEN INTO CUSTODY, WHEN HE APPEARS BEFORE A COMMITTING MAGISTRATE, WHEN HE IS FORMALLY CHARGED, OR WHEN HE OTHERWISE BECOMES ENTITLED TO COUNSEL UNDER THE ACT, WHICHEVER OCCURS EARLIEST. THE DETERMINATION OF WHETHER A PERSON IS ELIGIBLE FOR THE APPOINTMENT OF COUNSEL TO REPRESENT HIM UNDER THE ACT IS A JUDICIAL FUNCTION TO BE PERFORMED BY A FEDERAL JUDGE OR MAGISTRATE. OTHER OFFICERS OF THE COURT, HOWEVER, SUCH AS A CLERK OR DEPUTY CLERK, MAY BE DESIGNATED TO OBTAIN THE FACTS UPON WHICH SUCH DETERMINATION IS TO BE MADE. ANY INFORMATION BEARING ON THE DEFENDANT'S FINANCIAL STATUS SHOULD BE REFLECTED ON FORM CJA 23. WHENEVER PRACTICABLE, FACTFINDING SHOULD BE DONE PRIOR TO THE PERSON'S FIRST APPEARANCE IN COURT. THE DETERMINATION OF ELIGIBILITY SHOULD ORDINARILY BE MADE BY THE JUDGE OR MAGISTRATE AT THE PERSON'S FIRST APPEARANCE IN COURT, OR AT SUCH TIME AS THE APPOINTMENT OF AN ATTORNEY MAY BE REQUIRED, AFTER MAKING APPROPRIATE INQUIRIES OF THE PERSON AS TO HIS FINANCIAL SITUATION. FN9 FINANCIAL ELIGIBILITY

STANDARD FORMS HAVE BEEN DEVISED BY THE JUDICIAL CONFERENCE FOR USE IN OBTAINING INFORMATION REGARDING THE PERSON'S FINANCIAL CIRCUMSTANCES. SOME DISTRICTS OBTAIN THE NECESSARY INFORMATION BY MEANS OF A FINANCIAL AFFIDAVIT AND/OR OPEN COURT INQUIRY. FN10

THE GUIDELINES ALSO SET FORTH IN SECTION 2.04 "STANDARDS FOR ELIGIBILITY" WHICH PROVIDE AS FOLLOWS:

"STANDARDS FOR ELIGIBILITY. A PERSON IS 'FINANCIALLY UNABLE TO OBTAIN COUNSEL' WITHIN THE MEANING OF SUBSECTION (B) OF THE ACT IF HIS NET FINANCIAL RESOURCES AND INCOME ARE INSUFFICIENT TO ENABLE HIM TO OBTAIN QUALIFIED COUNSEL. DETERMINING WHETHER SUCH INSUFFICIENCY EXISTS, CONSIDERATION SHOULD BE GIVEN TO (A) THE COST OF PROVIDING THE PERSON AND HIS DEPENDENTS WITH THE NECESSITIES OF LIFE, AND (B) THE COST OF A DEFENDANT'S BAIL BOND IF FINANCIAL CONDITIONS ARE IMPOSED, OR THE AMOUNT OF THE CASE DEPOSIT DEFENDANT IS REQUIRED TO MAKE TO SECURE HIS RELEASE ON BOND."

TWO ISSUES CONCERNING THE DETERMINATION OF FINANCIAL ELIGIBILITY FOR COURT-APPOINTED COUNSEL SEEM RELEVANT TO THIS AUDIT:

1. THE VERIFICATION OF A PERSON'S ECONOMIC STATUS, AND 2. THE CONSISTENCY OF CRITERIA USED TO DETERMINE FINANCIAL INABILITY.

REGARDING THE FIRST ISSUE, THE SECOND PARAGRAPH OF SECTION 2.04 PROVIDES THAT "DOUBTS AS TO A PERSON'S ELIGIBILITY SHOULD BE RESOLVED IN HIS FAVOR," AND THAT ERRONEOUS DETERMINATIONS OF ELIGIBILITY MAY BE CORRECTED AT A LATER TIME. DISTRICT COURTS OFTEN RELY ON SWORN AFFIDAVITS, OATHS IN OPEN COURT, FN11 OR VERIFICATION UNDER PENALTY OF PERJURY, FN12 TO DETERMINE AN INDIVIDUAL'S FINANCIAL STATUS. HOWEVER, PROBLEMS MAY ARISE IF COURTS DO NOT CONDUCT ANY FURTHER INQUIRY OR INDEPENDENT VERIFICATION FOR THE PURPOSE OF CONFIRMING THE STATEMENTS OF THE ACCUSED. FN13

THEREFORE, PUBLIC DEFENSE SERVICES MAY BE PROVIDED IN SOME CASES TO A PERSON SOLELY UPON THE STATEMENTS MADE BY THE ACCUSED, WHO IS REQUIRED BY SECTION 2.04 TO BE INFORMED "OF THE PENALTIES FOR MAKING A FALSE STATEMENT AND OF HIS OBLIGATION TO INFORM THE COURT AND HIS ATTORNEY OF ANY CHANGE IN HIS FINANCIAL STATUS."

REGARDING THE SECOND ISSUE, THE GUIDELINES REQUIRE THAT CONSIDERATION BE GIVEN TO "THE COST OF PROVIDING THE PERSON AND HIS DEPENDENTS WITH THE NECESSITIES OF LIFE." IT WOULD APPEAR FROM THIS THAT COST-OF-LIVING LEVELS AMONG THE VARIOUS REGIONS OF THE UNITED STATES SHOULD BE TAKEN INTO ACCOUNT. IF SO, SOME VARIANCE IN THE ELIGIBILITY STANDARDS AMONG DISTRICTS MAY OCCUR, EVEN IF AN EFFORT IS MADE TO ESTABLISH UNIFORM STANDARDS. THIS DOES NOT ELIMINATE, HOWEVER, THE DESIRABILITY OF HAVING SOME SPECIFIC, MINIMUM STANDARDS FOR DETERMINING A DEFENDANT'S ABILITY TO AFFORD COUNSEL.

THE GUIDELINES REQUIRE CONSIDERATION OF THE COST OF THE DEFENDANT'S BAIL BOND OR CASE DEPOSIT REQUIRED TO SECURE RELEASE ON BOND AS AN INDICATION OF FINANCIAL ELIGIBILITY. THIS APPEARS TO BE ONE FACTOR RELEVANT TO DETERMINING AN INDIVIDUAL'S OUTSTANDING ASSETS AND LIABILITIES, AND, HENCE, HIS ABILITY TO AFFORD COUNSEL. HOWEVER, ON THE LOCAL LEVEL SOME STATES PUT A GREATER EMPHASIS ON WHETHER THE DEFENDANT WAS ABLE TO SECURE A BAIL BOND. FOR EXAMPLE, SOME STATES CONSIDER A DEFENDANT INELIGIBLE FOR COURT APPOINTED REPRESENTATION IF HE WAS ABLE TO SECURE HIS RELEASE ON BAIL. IN OTHER STATES, A DEFENDANT'S RELEASE ON BAIL CREATES A REBUTTABLE PRESUMPTION OF INELIGIBILITY. FN14

THESE TESTS FOR DETERMINING ELIGIBILITY FOR APPOINTED COUNSEL HAVE BEEN CRITICIZED ON THE FOLLOWING GROUNDS:

1. SINCE DEFENDANTS OFTEN BORROW MONEY TO POST BAIL, THE FACT THAT THEY OBTAINED RELEASE PROVIDES NO EVIDENCE OF PERSONAL FINANCIAL CIRCUMSTANCES;

2. THE DEFENDANT MAY HAVE EXHAUSTED HIS ASSETS IN SECURING HIS RELEASE; AND

3. IF THE DEFENDANT HAS ADEQUATE ASSETS TO SECURE RELEASE ON BAIL OR TO OBTAIN COUNSEL BUT INADEQUATE ASSETS TO DO BOTH, HE SHOULD NOT BE REQUIRED TO CHOOSE BETWEEN THE TWO SINCE BOTH MAY BE NECESSARY FOR ADEQUATE TRIAL PREPARATION. FN15

WE UNDERSTAND THAT THE AUDIT STAFF WILL LOOK AT ELEMENTS OF STATE PROGRAMS TO DETERMINE WHETHER THEY MIGHT BE ADAPTED TO THE FEDERAL SYSTEM. FOR THE REASONS STATED, HOWEVER, WE SUGGEST THAT THE USE OF BAIL AS A CRITERIA BE VIEWED AS ONLY ONE OF SEVERAL FACTORS RELEVANT TO DETERMINING AN INDIVIDUAL'S FINANCIAL STATUS.

THERE ARE MANY REFERENCES IN THE LEGISLATIVE HISTORY OF THE 1964 ACT OF THE NEED TO PROVIDE ADEQUATE REPRESENTATION FOR INDIGENT PERSONS. HOWEVER, THE TERM "INDIGENCY" IS NOT USED IN THE ACT OR DEFINED IN ITS LEGISLATIVE HISTORY. RATHER, THE ACT USES THE PHRASE "FINANCIALLY UNABLE TO OBTAIN ADEQUATE REPRESENTATION." THE STATUTE DOES NOT SPECIFY WHAT IS MEANT BY THIS, BUT IT IS REASONABLE TO CONCLUDE THAT IT DOES NOT REQUIRE THE LEVEL OF DESTITUTION SUGGESTED BY THE TERM INDIGENCY. CONSEQUENTLY, DISTRICTS PRESENTLY MAY PROVIDE COUNSEL FOR INDIVIDUALS WHO HAVE LITTLE CASH, BUT WHO POSSESS SUBSTANTIAL UNLIQUIDATED ASSETS. FOR EXAMPLE, THE DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE DETERMINES THAT A DEFENDANT IS ELIGIBLE FOR APPOINTMENT OF COUNSEL AND OTHER SERVICES UNDER THE CJA:

"WHEN THE VALUE OF HIS PRESENT NET ASSETS *** AND HIS NET INCOME *** ARE INSUFFICIENT TO ENABLE HIM PROMPTLY TO RETAIN A QUALIFIED RELEASE ON BOND AND PAY OTHER EXPENSES NECESSARY TO AN ADEQUATE DEFENSE, WHILE FURNISHING HIMSELF AND HIS DEPENDENTS WITH THE NECESSITIES OF LIFE."

PRESENT NET ASSETS ARE DEFINED AS:

"ASSETS SOLELY OWNED BY THE DEFENDANT, LESS THE AMOUNT OF ANY SECURITY INTERESTS HELD BY THIRD PARTIES, BUT DOES NOT INCLUDE ASSETS THE SALE OF WHICH WOULD CAUSE AN UNREASONABLE HARDSHIP TO THE PERSON OR HIS DEPENDENTS."

FN16 NET INCOME WITH RESPECT TO "SALARY, TAKE HOME PAY, AND OTHER FORMS OF INCOME," IS DEFINED AS "THE AMOUNT RECEIVED AFTER ANY WITHHOLDING."

IN ADDITION,

"THE STANDARDS PROVIDE FOR CONSIDERATION OF JOINT ASSETS, AND FOR SPECIAL CONSIDERATIONS DUE TO SEPARATION OR MARRIAGE AND DEFENDANTS UNDER 21 YEARS OF AGE. THEY ALSO SPECIFICALLY EXCLUDE ASSETS WHICH A DEFENDANT MIGHT OBTAIN BY BORROWING."

THESE STANDARDS ALSO SPECIFY MINIMUM AMOUNTS REQUIRED TO RETAIN AN ATTORNEY FOR VARIOUS KINDS OF CASES AND STAGES OF LITIGATION AS WELL AS MINIMUM LIVING ALLOWANCE REQUIREMENTS FOR THE DEFENDANT AND HIS DEPENDENTS.

THE QUOTED STANDARD SUGGESTS CONCERN FOR THE DEFENDANT'S FINANCIAL ABILITY TO PROMPTLY RETAIN A QUALIFIED ATTORNEY WITHOUT HARDSHIP, I.E., WITHOUT LIQUIDATING ASSETS WHICH WOULD EITHER TAKE A SUBSTANTIAL AMOUNT OF TIME, OR WOULD CREATE AN UNDUE HARDSHIP. HOWEVER, NEITHER THE ACT NOR THE LEGISLATIVE HISTORY PROVIDE CLEAR GUIDANCE WHERE THE LINE SHOULD BE DRAWN FOR THOSE WHO ARE "ASSET COMFORTABLE" BUT "CASH POOR."

THE CASE OF UNITED STATES V. COHEN, 419 F.2D 1124 (8TH CIR. 1969), ILLUSTRATES HOW DIFFICULT THIS ISSUE IS TO AUDIT. IN COHEN, THE DEFENDANT WAS DENIED COUNSEL IN DISTRICT COURT BECAUSE HE HELD EQUITY IN 1,520 ACRES OF LAND. THE DEFENDANT CONTENDED THAT HE DID NOT HAVE MONEY FOR COUNSEL. THE DISTRICT COURT DENIED COUNSEL WITHOUT FURTHER INQUIRY INTO THE DEFENDANT'S FINANCIAL CONDITION.

THE COURT OF APPEALS REVERSED THE CONVICTION BECAUSE THE DEFENDANT'S SIXTH AMENDMENT RIGHTS HAD BEEN VIOLATED. THE COURT HELD THAT A DEFENDANT NEED NOT BE DESTITUTE IN ORDER TO FALL WITHIN THE CJA. SINCE THE DEFENDANT INDICATED THAT HIS ASSETS WERE COMMITTED, THE DISTRICT COURT WAS UNDER A DUTY TO MAKE FURTHER INQUIRY INTO HIS FINANCIAL CONDITION IF THE DISTRICT COURT WAS TO DENY COUNSEL. THE APPELLATE COURT REJECTED THE LOWER COURT'S ASSUMPTION OF ADEQUATE LIQUIDITY AND LAND VALUE, AND CONSIDERED THOSE ASSUMPTIONS AS NOT CONSTITUTING THE TYPE OF INQUIRY NEEDED TO SAFEGUARD THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL. THE COURT IN U. S. V. KELLY, 467 F.2D 262 (7TH CIR. 1972), ALSO HELD THAT THE TEST IS NOT INDIGENCY BUT FINANCIAL INABILITY, AND THE FACT THAT DEFENDANT MAY HAVE ACCESS TO FUNDS IS NOT IN ITSELF DETERMINATIVE. ALSO, SEE U. S. V. BLACEWELL, 569 F.2D 1194 (2ND CIR. 1978), IN WHICH THE COURT HELD THAT IT SHOULD BE SENSITIVE TO THE DEFENDANT'S RESPONSIBILITIES TO HIS FAMILY.

THE RELEVANCE OF THESE CASES TO THIS AUDIT IS THAT THE MERE POSSESSION OF ASSETS IS NOT A BASIS FOR A JUDGE TO ASSUME THAT A DEFENDANT IS ABLE TO AFFORD ADEQUATE REPRESENTATION. A MORE DETAILED, DELIBERATIVE INQUIRY IS ESSENTIAL.

YOUR AUDIT STAFF MAY WISH TO EXAMINE TO WHAT EXTENT SYSTEMS, LIKE THAT IN THE DISTRICT OF COLUMBIA, RESULT IN PERSONS WITH SUBSTANTIAL FIXED ASSETS OBTAINING COURT APPOINTED COUNSEL. IF YOUR AUDIT DATA REVEALS THAT THIS OCCURS FREQUENTLY, CONSIDERATION OF MORE SPECIFIC ELIGIBILITY STANDARDS THAT TAKE INTO ACCOUNT COST OF LIVING DIFFERENCES BETWEEN THE DISTRICTS, A PERSON'S NET ASSETS, AND THE DIFFICULTY IN LIQUIDATING THEM, MAY BE APPROPRIATE. OF COURSE, ELIGIBILITY STANDARDS MUST BE DEVELOPED WITHIN THE FRAMEWORK OF APPLICABLE CASE LAW, AND BE CONSISTENT WITH CONSTITUTIONAL REQUIREMENTS THAT ENTITLE INDIVIDUALS TO COUNSEL.

TYPES OF CASES FOR WHICH COUNSEL IS APPOINTED

YOU ASKED THAT WE DETERMINE THE RELEVANCE OF TWO COMPTROLLER GENERAL DECISIONS AND THE CASE OF ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972), TO THE APPLICABILITY OF THE CJA TO PROBATION AND PAROLE REVOCATION HEARINGS. IN 45 COMP.GEN. 780 (1966), WE WERE ASKED TO DETERMINE WHETHER FUNDS WERE AVAILABLE UNDER THE CJA TO PAY FOR APPOINTED COUNSEL AT A PROBATION REVOCATION HEARING. WE CONCLUDED THAT A PROBATION REVOCATION HEARING WAS NOT AN EXTENSION OF THE ORIGINAL ACTION WHICH WOULD ENTITLE THE OFFENDER TO LEGAL REPRESENTATION AS A CONSTITUTIONAL RIGHT AND, THEREFORE, THE CJA OF 1964 DID NOT APPLY TO SUCH A HEARING. HOWEVER, THE SUPREME COURT HELD IN MEMPA V. RHAY, 389 U.S. 128 (1967), THAT THERE IS A RIGHT TO COUNSEL IN A PROBATION REVOCATION HEARING THAT IS COUPLED WITH A DEFERRED SENTENCING PROCEEDING. THEREFORE, WE DECIDED IN 50 COMP.GEN. 128 (1970), THAT OUR DECISION IN 45 COMP.GEN. 780 "NEED NO LONGER BE CONSIDERED CONTROLLING IN CONNECTION WITH PROCEEDINGS INVOLVING DEFERRED SENTENCING, *** BUT THE DECISION REMAINS IN EFFECT INSOFAR AS SIMPLE REVOCATION OF PROBATION PROCEEDINGS ARE CONCERNED."

THOSE CASES ARE NO LONGER RELEVANT TO THE QUESTION YOU RAISE BECAUSE OF THE 1970 AMENDMENTS TO THE CJA. THE LAW NOW SPECIFICALLY APPLIES TO AN INDIVIDUAL WHO IS CHARGED WITH A VIOLATION OF PROBATION OR IS SUBJECT TO REVOCATION OF PAROLE. 18 U.S.C. 3006A. THE APPOINTMENT OF COUNSEL IN REVOCATION HEARINGS IS DISCUSSED IN DETAIL LATER IN THIS SECTION.

THE CASE OF ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972), INVOLVED AN INDIGENT DEFENDANT WHO WAS CHARGED IN FLORIDA WITH CARRYING A CONCEALED WEAPON, AN OFFENSE PUNISHABLE BY A MAXIMUM OF 6 MONTHS IMPRISONMENT, A $1,000 FINE OR BOTH. BECAUSE THE RIGHT TO COURT-APPOINTED COUNSEL WAS PROVIDED IN FLORIDA ONLY IN TRIALS FOR NON-PETTY OFFENSES PUNISHABLE BY MORE THAN 6 MONTHS IMPRISONMENT, WHICH REQUIRED A JURY TRIAL, THE DEFENDANT WAS NOT REPRESENTED BY COUNSEL. AFTER BEING SENTENCED TO 90 DAYS IN JAIL, THE PETITIONER BROUGHT A HABEAS CORPUS ACTION ALLEGING THAT BECAUSE HE WAS DEPRIVED OF THE RIGHT TO COUNSEL, HE WAS UNABLE TO DEFEND HIMSELF AGAINST THE CHARGES FOR WHICH HE WAS CONVICTED.

THE COURT REJECTED THE PREMISE THAT ASSISTANCE OF COUNSEL IS BASED UPON THE RIGHT TO TRIAL BY JURY, BUT HELD THAT -

"*** ABSENT A KNOWING AND INTELLIGENT WAIVER, NO PERSON MAY BE IMPRISONED FOR ANY OFFENSE, WHETHER CLASSIFIED AS PETTY, MISDEMEANOR, OR FELONY, UNLESS HE WAS REPRESENTED BY COUNSEL AT HIS TRIAL." 407 U.S. AT 37, SUPRA.

ACCORDINGLY, THE SUPREME COURT REVERSED THE CONVICTION BECAUSE THE DEFENDANT HAD RECEIVED A SENTENCE OF IMPRISONMENT WITHOUT BEING PROVIDED COUNSEL, OR WAIVING COUNSEL.

THE SUPREME COURT WAS ASKED IN SCOTT V. ILLINOIS, 440 U.S. 367 (1979), TO RESOLVE A CONFLICT AMONG VARIOUS COURTS CONCERNING THE APPLICATION OF THE RULE IN ARGERSINGER. THE STATE OF ILLINOIS REFUSED TO PROVIDE COUNSEL TO A DEFENDANT CHARGED WITH SHOPLIFTING. THE ILLINOIS STATUTE AUTHORIZED A MAXIMUM PENALTY OF ONE YEAR IN JAIL OR A FINE, OR BOTH. THE DEFENDANT WAS CONVICTED AND FINED. THE DEFENDANT APPEALED HIS CONVICTION, ARGUING THAT THE RULE IN ARGERSINGER REQUIRED THE PROVISION OF COUNSEL WHENEVER IMPRISONMENT IS AN AUTHORIZED PENALTY. THE SUPREME COURT UPHELD THE CONVICTION, STATING THAT THE CONSTITUTION REQUIRES "ONLY THAT NO INDIGENT CRIMINAL DEFENDANT BE SENTENCED TO A TERM OF IMPRISONMENT UNLESS THE STATE HAS AFFORDED HIM THE RIGHT TO ASSISTANCE OF COUNSEL IN HIS DEFENSE." THE COURT CONCLUDED THAT ACTUAL IMPRISONMENT IS THE LINE DEFINING THE CONSTITUTIONAL RIGHT TO APPOINTMENT OF COUNSEL.

APPOINTMENT OF COUNSEL IN SUCH CASES IS GOVERNED BY THE CONSTITUTIONAL PRINCIPLES ENUNCIATED IN ARGERSINGER AND SCOTT. THE AUTHORIZED PENALTIES IN THE ARGERSINGER AND SCOTT CASES WOULD HAVE MADE THOSE CASES PETTY OFFENSES IF THEY HAD BEEN FEDERAL CASES. PRIOR TO 1970, SECTION 3006AA) OF TITLE 18 AUTHORIZED PAYMENT FOR COUNSEL APPOINTED TO ONE CHARGED WITH A FELONY OR MISDEMEANOR, OTHER THAN A PETTY OFFENSE AS DEFINED IN 18 U.S.C. 1. BECAUSE OFFENSES LIKE THOSE CHARGED IN ARGERSINGER AND SCOTT WOULD HAVE QUALIFIED AS PETTY OFFENSES, PAYMENT UNDER THE CJA WOULD HAVE NOT BEEN AUTHORIZED.

HOWEVER, WHEN THE CJA WAS AMENDED IN 1970, PROVISION WAS MADE FOR COUNSEL WHENEVER THE SIXTH AMENDMENT SO REQUIRED.

SECTION 3006AA) OF TITLE 18, AS AMENDED IN 1970, PROVIDES THAT:

"ANY PERSON *** FOR WHOM THE SIXTH AMENDMENT REQUIRES THE APPOINTMENT OF COUNSEL OR FOR WHOM, IN A CASE IN WHICH HE FACES LOSS OF LIBERTY, ANY FEDERAL LAW REQUIRES THE APPOINTMENT OF COUNSEL."

UNDER THE ABOVE PROVISION OF SECTION 3006(A), COURT APPOINTED COUNSEL NOW MAY BE PAID UNDER THE CJA IN PETTY OFFENSE CASES WHEN COUNSEL IS PROVIDED. THIS WOULD OCCUR IF THE DEFENDANT, IN THE VIEW OF THE JUDGE, MIGHT RECEIVE A SENTENCE OF IMPRISONMENT, IF CONVICTED.

THE GUIDELINES CORRECTLY POINT OUT THAT THIS PROVISION IS MADE TO OBVIATE THE NEED FOR FUTURE AMENDMENTS TO THE ACT EACH TIME THE RIGHT TO COUNSEL MAY BE EXTENDED TO NEW SITUATIONS BY JUDICIAL DECISION OR FEDERAL STATUTES. (SECTION 2.01(A)(4)). THE GUIDELINES ALSO SPECIFY SOME PROCEEDINGS IN ADDITION TO THOSE DETAILED IN THE STATUTE THAT ARE COMPENSABLE UNDER THE ACT. (SEE SECTION 2.01(F)). SINCE THE SUPREME COURT HELD IN ARGERSINGER THAT ABSENT WAIVER, THE CONSTITUTION REQUIRES THAT COUNSEL MUST BE PROVIDED AT TRIAL WHENEVER A DEFENDANT MAY BE IMPRISONED, IT IS IMPORTANT TO RECOGNIZE THAT THERE ARE CIRCUMSTANCES WHERE COUNSEL WOULD BE REQUIRED EVEN IF THE CJA AUTHORIZATION DID NOT EXIST.

POST-CONVICTION HEARINGS

THE 1970 AMENDMENTS TO THE CJA EXPANDED THE STATUTE TO SPECIFICALLY APPLY TO INDIVIDUALS WHO ARE CHARGED WITH A VIOLATION OF PROBATION OR WHO ARE SUBJECT TO REVOCATION OF PAROLE. THE BLANKET COVERAGE OF THESE SITUATIONS BY THE CJA, HOWEVER, DOES NOT SEEM TO BE MANDATED BY THE SIXTH AMENDMENT.

AS DISCUSSED EARLIER, THE SUPREME COURT HELD IN MEMPA V. RHAY, 389 U.S. 128 (1967), THAT A PROBATIONER IS ENTITLED AT A COMBINED REVOCATION AND SENTENCING HEARING. THE COURT EMPHASIZED THE SENTENCING OF THE DEFENDANT AS THE KEY ELEMENT IN REACHING ITS HOLDING.

THE COURT THEN HELD IN MORRISSEY V. BREWER, 408 U.S. 471 (1972), THAT THE REVOCATION OF PAROLE IS NOT A PART OF THE CRIMINAL PROSECUTION BECAUSE IT ARISES AFTER THE END OF THE PROSECUTION, INCLUDING IMPOSITION OF SENTENCE. BUT THE COURT ALSO HELD THAT THE LOSS OF LIBERTY ENTAILED IS A SERIOUS DEPRIVATION REQUIRING THAT THE PAROLEE BE ACCORDED DUE PROCESS. THE COURT CONCLUDED THAT DUE PROCESS REQUIRED TWO HEARINGS, ONE A PRELIMINARY HEARING TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT PAROLE HAD BEEN VIOLATED, AND THE OTHER A SOMEWHAT MORE COMPREHENSIVE HEARING PRIOR TO THE MAKING OF THE FINAL REVOCATION DECISION. THE COURT DID NOT ADDRESS THE ISSUE WHETHER DUE PROCESS ALSO REQUIRED THAT THE PAROLEE BE REPRESENTED BY COUNSEL.

THIS ISSUE WAS ADDRESSED IN GAGNON V. SCARPELLI, 411 U.S. 778 (1972). THE COURT HELD THAT FOR PURPOSES OF DUE PROCESS, THERE WAS NO DIFFERENCE BETWEEN THE REVOCATION OF PAROLE AND THE REVOCATION OF PROBATION. THEREFORE, THE COURT EXTENDED THE REQUIREMENT OF DUE PROCESS HEARINGS ENUNCIATED IN MORRISSEY FOR PAROLEES TO PROBATIONERS. THE COURT THEN ADDRESSED WHAT IT ACKNOWLEDGED TO BE THE MORE DIFFICULT ISSUE - THAT IS, WHETHER DUE PROCESS ALSO REQUIRES THAT AN INDIGENT PROBATIONER OR PAROLEE BE REPRESENTED BY COUNSEL AT THESE HEARINGS.

THE COURT, CITING MORRISSEY, PRESENTED AN EXTENSIVE ANALYSIS OF THE ROLE OF THE PROBATION OR PAROLE OFFICER'S FUNCTION AND CONCLUDED THAT THE FIRST STEP IN REVOCATION IS A WHOLLY FACTUAL QUESTION FOLLOWED BY A CONSIDERATION OF THE REHABILITATION, RATHER THAN THE PUNITIVE, ASPECTS OF THE PROBATION/PAROLE SYSTEM. HOWEVER, THE COURT RECOGNIZED THAT EVEN THOUGH THE OFFICER IS NOT CONVERTED INTO A PROSECUTOR WHEN HE RECOMMENDS REVOCATION, HIS ROLE AS COUNSELLOR TO THE PROBATIONER OR PAROLEE IS COMPROMISED.

THE COURT THEN STATED THAT WHEN THE OFFICER AND THE PROBATIONER OR PAROLEE HAVE DIFFERENT VIEWS OF THE LATTER'S CONDUCT, DUE PROCESS REQUIRES THAT THESE DIFFERENCES BE RESOLVED BEFORE REVOCATION BECOMES FINAL. WAS TO SERVE THIS INTEREST THAT MORRISSEY MANDATED HEARINGS AND OTHER REQUIREMENTS OF DUE PROCESS.

HOWEVER, THE COURT REJECTED THE ARGUMENT OF THE PETITIONER, A WARDEN THAT BECAUSE REQUIREMENTS IN MORRISSEY THEMSELVES SERVE AS SUBSTANTIAL PROTECTION AGAINST ILL-CONSIDERED REVOCATION, COUNSEL NEVER NEED BE SUPPLIED. THE COURT STATED THAT THE EFFECTIVENESS OF THE RIGHTS GUARANTEED BY MORRISSEY MAY IN SOME CIRCUMSTANCES DEPEND ON THE USE OF SKILLS WHICH THE PROBATIONER OR PAROLEE IS UNLIKELY TO POSSESS. THIS WOULD BE PARTICULARLY TRUE WHEN THE PRESENTATION OF THE PROBATIONER'S OR PAROLEE'S CASE REQUIRES THE EXAMINATION OF WITNESSES OR THE ANALYSIS OF COMPLEX DOCUMENTARY EVIDENCE.

ON THE OTHER HAND, THE COURT HELD THAT THE COURT OF APPEALS ERRED IN CONCLUDING THAT THERE IS A CONSTITUTIONAL DUTY TO PROVIDE COUNSEL IN ALL REVOCATION CASES. THE COURT ACKNOWLEDGED THAT THE INTRODUCTION OF COUNSEL WOULD CHANGE THE NATURE OF THESE PROCEEDINGS, AND RESULT IN DIRECT COSTS AND SERIOUS COLLATERAL DISADVANTAGES. THE COURT HELD THAT THIS IMPACT MUST BE ENDURED WHEN THE PROBATIONER'S OR PAROLEE'S VERSION OF THE FACTS CAN BE PRESENTED ONLY BY A TRAINED ADVOCATE. ACCORDINGLY, THE COURT HELD THAT DUE PROCESS ALLOWS FOR A CASE-BY-CASE APPROACH TO THE RIGHT TO COUNSEL IN REVOCATION HEARINGS. THE COURT DISTINGUISHED THIS CASE FROM THOSE INVOLVING CRIMINAL PROCEEDINGS IN WHICH A CASE-BY CASE APPROACH WAS REJECTED.

THIS CASE INVOLVED A STATE, NOT FEDERAL ACTION. THE SCOPE OF THE CJA WAS NOT AN ISSUE. SECTION 3006AA) OF TITLE 18 GOES BEYOND GAGNON BY REQUIRING DISTRICT COURTS TO HAVE A PLAN FOR PROVIDING COUNSEL IN REVOCATION HEARINGS. HOWEVER, THE PRINCIPLES ENNUNCIATED IN GAGNON REMAINED AN ISSUE IN PAROLE REVOCATION UNTIL 1976 BECAUSE OF SECTION 3006(A)(G), WHICH PROVIDED THAT APPOINTMENT OF COUNSEL FOR PERSONS SUBJECT TO REVOCATION OF PAROLE WAS DISCRETIONARY. APPOINTMENT OF COUNSEL WAS BASED ON A DETERMINATION THAT THE INTERESTS OF JUSTICE SO REQUIRED.

DECISIONS IMMEDIATELY AFTER GAGNON HELD THAT NO AUTOMATIC RIGHT TO COUNSEL EXISTED IN PAROLE REVOCATION HEARINGS BECAUSE OF SECTION 3006AG). HOWEVER, IN 1976, CONGRESS ENACTED THE PAROLE COMMISSION AND REORGANIZATION ACT, PUB.L. 94-233, 18 U.S.C. 4201 ET SEQ. SECTION 4214(A)(2)(B) PROVIDES THAT IF A PAROLEE IS FINANCIALLY UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO SECTION 3006A.

AN EARLY DISTRICT COURT DECISION HELD THAT BECAUSE SECTION 4214(A)(2)(B) PROVIDES THAT APPOINTMENT OF COUNSEL SHALL BE MADE PURSUANT TO SECTION 3006A, AND BECAUSE SECTION 3006AG) PROVIDES FOR SUCH APPOINTMENT ONLY WHEN THE INTERESTS OF JUSTICE SO REQUIRE, APPOINTMENT OF COUNSEL IS NOT ALWAYS REQUIRED. APPLICATION OF SMITH, 433 F.SUPP. 255 (D.KAN. 1977).

HOWEVER, THE DISCRETION APPARENTLY GIVEN TO COURTS IN PAROLE REVOCATION HEARINGS BY SMITH HAS BEEN ELIMINATED BY SUBSEQUENT DECISIONS. THE SMITH COURT, RELYING ON BALDWIN V. BENSON, 584 F.2D 953 (10TH CIR. 1978), REVERSED ITSELF IN THE APPLICATION OF TRACY, 457 F.SUPP. 993 (D.KAN. 1978). THE HOLDING IN THE BALDWIN AND TRACY CASES IS THAT CONGRESS INTENDED THAT 18 U.S.C. 4214(A)(2)(B) CONFER ON THE PAROLEE A RIGHT TO COUNSEL UNLESS THAT RIGHT IS WAIVED. THESE COURTS AND OTHERS SINCE THEN HAVE REJECTED THE ARGUMENT THAT THE GENERAL REFERENCE IN SECTION 4214(A)(2)(B) TO SECTION 3006A RESURRECTED THE PROVISION OF THE CJA MAKING APPOINTMENT OF COUNSEL DISCRETIONARY. THE COURTS NOW HOLD THAT THE USE OF THE WORD "SHALL" IN SECTION 4214(A)(2)(B) AND THE CONGRESSIONAL INTENT OF THAT PROVISION REQUIRE THE CONCLUSION THAT THE APPOINTMENT OF COUNSEL IS NO LONGER DISCRETIONARY, BUT IS A MATTER OF RIGHT.

THE CONSTITUTIONAL ISSUES DISCUSSED IN GAGNON ARE NOT THE ONLY RELEVANT FACTORS INSOFAR AS THE RIGHT TO APPOINTED COUNSEL IN REVOCATION HEARINGS IS CONCERNED. IN THE VIEW OF THE COURTS THAT HAVE CONSIDERED THE ISSUE, THIS RIGHT IS NOW CONFERRED ON PROBATIONERS AND PAROLEES BY THE CJA. UNDER GAGNON, THE APPOINTMENT OF COUNSEL IN REVOCATION HEARINGS COULD BE HANDLED ON A CASE-BY-CASE BASIS, BUT AMENDMENTS TO THE CJA IN THE CASE OF PROBATIONERS AND TO THE PAROLE ACT IN THE CASE OF PAROLEES WOULD BE NECESSARY.

YOU MAY NEED TO HAVE OVERWHELMING EVIDENCE THAT ATTORNEYS GENERALLY PROVIDE NO USEFUL PURPOSE AT THESE HEARINGS IN ORDER TO CONVINCE CONGRESS THAT IT SHOULD RETREAT FROM THE POSITION IT TOOK IN ENACTING THE 1970 AMENDMENTS TO THE CJA AND THE 1976 PAROLE COMMISSION AND REORGANIZATION ACT.

THERE HAVE BEEN POST-CONVICTION PROCEEDINGS WHERE APPOINTMENT OF COUNSEL HAS BEEN DENIED, BOTH ON CONSTITUTIONAL AND STATUTORY GROUNDS. IN BRAWER V. U. S., 462 F.SUPP. 739 (D.N.Y. 1978), THE COURT HELD THAT THE INTERESTS OF JUSTICE DID NOT REQUIRE APPOINTMENT OF COUNSEL RELATIVE TO A POST CONVICTION PETITION VACATING THE SENTENCE AND CONVICTION BECAUSE THE DEFENDANT ALREADY HAD ADEQUATELY STATED HIS CLAIMS BEFORE THE COURT. SIMILARLY, IN BURRELL V. U. S., 332 A.2D 344 (D.C.APP. 1975), CERT. DENIED 423 U.S. 826 (1975), THE COURT HELD THAT THE CJA DOES NOT REQUIRE THE APPOINTMENT OF COUNSEL TO ASSIST IN THE PREPARATION OF A POSTAPPEAL MOTION OR REDUCTION IN SENTENCE. FOR PROCEEDINGS SUCH AS THESE, THE COURTS DETERMINE ON A CASE-BY-CASE BASIS WHETHER THE DEFENDANT IS ENTITLED TO COUNSEL UNDER THE SIXTH AMENDMENT OR OTHERWISE UNDER THE CJA.

TIMING OF THE APPOINTMENT OF COUNSEL

INDIVIDUALS MAY BE CONFINED AT PROSECUTIVE STAGES PRIOR TO TRIAL. THE RELEVANT ISSUE IS WHETHER COUNSEL IS REQUIRED AT ALL DISPOSITIVE STAGES IN THE CRIMINAL PROCESS WHICH COULD RESULT IN AN INDIVIDUAL'S LOSS OF LIBERTY. THE SUPREME COURT HAS HELD THAT THE SIXTH AMENDMENT RIGHT TO COUNSEL IS NOT APPLICABLE TO EVENTS BEFORE INITIATION OF ADVERSARY CRIMINAL PROCEEDINGS. THE PRINCIPLES ENUNCIATED BY THE COURT ARE THAT COUNSEL IS REQUIRED AT TRIAL-LIKE CONFRONTATIONS WHERE A COUNTERBALANCE IS NEEDED TO ANY OVERREACHING BY THE PROSECUTION. SEE THE DISCUSSION OF THESE PRINCIPLES IN U. S. V. ASH, 413 U.S. 300 (1972). THE RIGHT TO COUNSEL HAS BEEN EXTENDED TO THE FOLLOWING CIRCUMSTANCES:

- INTERROGATION

- WHEN THE ACCUSED, PRIOR TO ARRAIGNMENT, WAS SUBJECTED TO INTERROGATION WITHOUT COUNSEL AND THE INVESTIGATION IS NO LONGER A GENERAL INQUIRY, BUT HAS FOCUSED ON THE ACCUSED. FN17

- ARRAIGNMENT - SINCE IT CONSTITUTES A CRITICAL STAGE IN A CRIMINAL PROSECUTION. FN18

- PRELIMINARY HEARING - SINCE IT MAY CONSTITUTE A CRITICAL STAGE WHICH MAY IMPACT ON LATER PROCEEDINGS IF THE ACCUSED DOES NOT HAVE COUNSEL. FN19

- POST-INDICTMENT LINEUPS. FN20

A PROBLEM MAY ARISE DUE TO THE STATUTORY PROCEDURES BY WHICH COUNSEL IS APPOINTED. FOR EXAMPLE, THE CJA PROVIDES FOR FURNISHING REPRESENTATION TO A PERSON "WHO IS UNDER ARREST, WHEN SUCH REPRESENTATION IS REQUIRED BY LAW" (18 U.S.C. 3006AA)), AND THE GUIDELINES STATE THAT "COUNSEL SHOULD BE PROVIDED AS SOON AS FEASIBLE AFTER THE INDIVIDUAL IS TAKEN INTO CUSTODY *** OR WHEN HE OTHERWISE BECOMES ENTITLED TO COUNSEL UNDER THE ACT ***" (SUBSECTION 2.03). THE STATUTE REQUIRES THAT COUNSEL BE APPOINTED BY THE U. S. MAGISTRATE OR BY THE COURT (18 U.S.C. SEC. 3006AB)), AND REPRESENTATION GENERALLY IS NOT PROVIDED UNTIL THE FIRST COURT APPEARANCE. FURTHERMORE, THE DETERMINATION OF ENTITLEMENT TO COURT- APPOINTED COUNSEL DEPENDS, IN PART, UPON THE NATURE OF THE CASE AND THE SENTENCE THAT COULD BE IMPOSED IN THE EVENT OF CONVICTION. IN MANY INSTANCES IT MAY NOT BE CLEAR AT THE TIME THE INDIVIDUAL IS TAKEN INTO CUSTODY WHETHER THE CIRCUMSTANCES WARRANT REPRESENTATION UNDER THE ACT. MORE IMPORTANTLY, THE RIGHT TO COUNSEL MAY ATTACH BEFORE THE TIME FOR A NORMAL COURT APPEARANCE, AS WITH CUSTODIAL INTERROGATION.

IT ALSO SHOULD BE NOTED THAT WHEN THERE IS A LEGAL QUESTION AS TO ELIGIBILITY, THE APPOINTMENT PROCEDURE FOR THE ASSIGNMENT OF PRIVATE COUNSEL AND PRIVATE DEFENDERS WHO OPERATE ON A CJA FEE SCALE MAY CREATE PROBLEMS. IF AT THE FIRST COURT APPEARANCE IT IS JUDICIALLY DETERMINED THAT THE DEFENDANT IS NOT FINANCIALLY OR LEGALLY ELIGIBLE FOR A CJA ATTORNEY, THEN PRIOR REPRESENTATION WAS NOT FURNISHED PURSUANT TO THE CJA PLAN AND PAYMENT IS, THEREFORE, NOT AUTHORIZED. IF THE ATTORNEY WISHES TO BE PAID, HE OR SHE WOULD HAVE THE POSSIBLY UNREALISTIC OPTION OF LOOKING TO THIS DEFENDANT FOR REMUNERATION. YOUR AUDIT MIGHT EXAMINE WHAT ATTENTION IS GIVEN TO MEETING THE NEEDS OF INDIVIDUALS FOR EARLY REPRESENTATION AT CRITICAL STAGES OF THE CRIMINAL PROCESS. OF PARTICULAR INTEREST WOULD BE THE MEANS BY WHICH THE ENTITLEMENT OF COURT APPOINTED COUNSEL IS CONSIDERED BY LAW ENFORCEMENT OFFICIALS PRIOR TO THE TIME THE DEFENDANT NORMALLY WOULD COME BEFORE THE COURT.

FN1 DALLIN H. OAKES, "THE CRIMINAL JUSTICE ACT IN THE FEDERAL DISTRICT COURTS," (1969).

FN2 116 CONG. REC. 35500 (1970).

FN3 OAKES, P. 122.

FN5 ALSO SEE THE CRIMINAL JUSTICE ACT PLAN OF THE U. S. DISTRICT COURT FOR THE DISTRICT OF MD., JANUARY 10, 1974, P. 3.

FN6 PLAN AS TO APPOINTMENT OR ASSIGNMENT OF COUNSEL IN CRIMINAL CASES UNDER THE CJA OF 1964, U. S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, AS AMENDED FEBRUARY 11, 1971, 2-3.

FN7 OAKES, AT 71, 72.

FN8 18 U.S.C. SEC. 3005AA).

FN9 GUIDELINES FOR THE ADMINISTRATION OF THE CRIMINAL JUSTICE ACT, SECTION 2.03 (DEC. 2, 1980).

FN10 COMPTROLLER GENERAL, SUPRA NOTE 7, AT 19.

FN11 CJA PLAN FOR THE EASTERN DISTRICT OF VIRGINIA, SUPRA NOTE 14, AT 4.

FN12 CJA PLAN FOR THE DISTRICT OF MD., SUPRA NOTE 13, AT 4.

FN13 SEE UNITED STATES V. COHEN, 419 F.2D 1124 (1969), DISCUSSED LATER IN THIS MEMORANDUM.

FN14 KRANTZ AT 322.

FN15 ID.

FN16 NATIONAL INSTITUTE OF LAW ENFORCEMENT AND CRIMINAL JUSTICE, LEAA, U. S. DEPARTMENT OF JUSTICE, AN EXEMPLARY PROJECT: THE PUBLIC DEFENDER SERVICE OF THE DISTRICT OF COLUMBIA (VOL. I: POLICIES AND PROCEDURES) 10 HEREINAFTER CITED AS D. C. PUBLIC DEFENDER SERVICE.

FN17 ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1963).

FN18 HAMILTON V. ALABAMA 368 U.S. 52 (1961).

FN19 WHITE V. MARYLAND, 373 U.S. 59 (1963); COLEMAN V. ALABAMA, 368 U.S. 1 (1970).

FN20 UNITED STATES V. WADE, 388 U.S. 218 (1967); GILBERT V. CALIFORNIA, 388 U.S. 263 (1967).

LEGISLATIVE HISTORY OF THE CRIMINAL JUSTICE ACT

THE LEGISLATIVE HISTORY PREPARED BY THE GGD STAFF, WITH THE INCORPORATION OF THE FOLLOWING COMMENTS, ACCURATELY REFLECTS THE CONGRESSIONAL INTENT OF THE 1964 CJA AND THE 1970 AMENDMENTS. MY COMMENTS PRIMARILY SERVE TO TIGHTEN UP THE CONCLUSIONS IN THAT LEGISLATIVE HISTORY WHICH ARE BASED, IN PART, ON SWEEPING STATEMENTS BY LEGISLATORS AND OTHERS WHICH DO NOT TOTALLY REFLECT THE ACTUAL EFFECT OF THE CJA.

I. MAJOR PREMISE - PAGE 1

THE MAJOR PREMISE OF THE CJA IS STATED AS BEING "EQUAL JUSTICE FOR ALL" AND IS BASED ON A STATEMENT BY SENATOR HRUSKA IN THE CONFERENCE REPORT. THAT STATEMENT ALSO REFERS TO JUSTICE FOR THE INDIGENT.

EQUAL JUSTICE FOR ALL CERTAINLY IS SOMETHING TO STRIVE FOR AND SENATOR HRUSKA STATEMENT THAT "WE ARE A NATION DEDICATED TO THE PRECEPT OF EQUAL JUSTICE FOR ALL" IS AN ADMIRABLE ONE. HOWEVER, IT MAY BE AN OVERSTATEMENT TO CONCLUDE THAT THE CJA TRULY SEEKS TO ACCOMPLISH THIS, ESPECIALLY IF EQUAL JUSTICE IS THOUGHT TO MEAN EQUAL LEGAL REPRESENTATION. CERTAINLY ONE WHO HAS A COURT APPOINTED ATTORNEY MAY NOT RECEIVE THE SAME DEGREE OF ASSISTANCE AS ONE WHO HAS SUBSTANTIAL ECONOMIC RESOURCES AND THEREFORE, CAN HIRE THE BEST ATTORNEYS, INVESTIGATORS, AND EXPERTS TO HELP PREPARE A CRIMINAL DEFENSE.

IT IS A FAIRER AND MORE ACCURATE READING OF THE CJA TO CONCLUDE THAT ITS PREMISE IS THAT ALL DEFENDANTS SHOULD HAVE ADEQUATE LEGAL REPRESENTATION WHICH CAN BE FULLY ACCOMPLISHED IF COURT APPOINTED ATTORNEYS RECEIVE SOME COMPENSATION, RATHER THAN WORKING PRO BONO.

SENATOR HRUSKA'S STATEMENT, AS THOSE OF MANY OTHERS, INCLUDING MANY COURTS, REFERS TO INDIGENT PERSONS. "INDIGENT" COMMONLY IS DEFINED AS IMPOVERISHED OR LACKING THE MEANS OF SUBSISTENCE. HOWEVER, REFERENCES TO INDIGENCY SHOULD NOT BE TAKEN TO MEAN THAT THE STATUTE WAS DIRECTED, OR WAS INTENDED TO BE DIRECTED, ONLY TO INDIGENT PERSONS. THE STATUTE CONTAINS NO DEFINITION OF INDIGENCY AND, IN FACT, MAKES NO REFERENCE TO INDIGENT PERSONS. RATHER, THE STATUTE REFERS MANY TIMES TO DEFENDANTS WHO ARE FINANCIALLY UNABLE TO OBTAIN VARIOUS ELEMENTS OF AN ADEQUATE DEFENSE, WHETHER THEY BE LEGAL, INVESTIGATIVE, EXPERT, OR OTHER SERVICES. COURT DECISIONS ENDORSE THE VIEW THAT THE CONSTITUTIONAL GUARANTEE OF AN ADEQUATE DEFENSE AND, CONSEQUENTLY, THE RIGHT TO COURT APPOINTED COUNSEL, EXTENDS TO DEFENDANTS OTHER THAN THOSE WHO ARE INDIGENT. THIS CONCERN APPLIES TO VARIOUS PARTS OF YOUR LEGISLATIVE HISTORY, PARTICULARLY SECTIONS II AND III. CONSEQUENTLY, YOUR LEGISLATIVE HISTORY AND, LATER, YOUR REPORT SHOULD NOT USE THE TERM "INDIGENT," WHICH MIGHT SUGGEST THAT THEY ARE THE EXLUSIVE TARGETS OF THE CJA.

II. HISTORICAL FOUNDATION OF RIGHT OF COUNSEL - PAGES 1-4

THIS SECTION MERGES TWO RELATED THOUGHTS: (1) THE SIXTH AMENDMENT RIGHT TO COUNSEL AND (2) THE RIGHT TO COUNSEL UNDER THE CJA IN WHICH COUNSEL RECEIVES COMPENSATION. DISTINGUISHING BETWEEN THESE TWO THOUGHTS BECOMES PARTICULARLY RELEVANT IN DISCUSSING THE 1970 AMENDMENTS TO THE CJA IN WHICH THE STATUTE WAS EXPANDED TO SPECIFICALLY COVER SITUATIONS THAT DO NOT FALL WITHIN THE SIXTH AMENDMENT, SUCH AS WHEN COUNSEL IS REQUIRED BY FEDERAL LAW OR IN CIRCUMSTANCES WHEN AN INDIVIDUAL IS SUBJECT TO PAROLE OR PROBATION REVOCATION PROCEEDINGS. SEE THE DISCUSSION IN ATTACHMENT I CONCERNING THE CONSTITUTIONAL RIGHT TO COUNSEL IN REVOCATION HEARINGS BEING DETERMINED ON A CASE-BY-CASE BASIS, WHEREAS THE CJA HAS BEEN CONSTRUED TO REQUIRE COUNSEL IN ALL REVOCATION HEARINGS.

THIS SECTION REFERS TO THE CASE OF JOHNSON V. ZERBAT, 304 U.S. 458 (1938) (CASE IS INCORRECTLY CITED IN YOUR DRAFT). THIS CASE DOES NOT DEAL WITH THE ISSUE OF PROVIDING REPRESENTATION TO THOSE UNABLE TO AFFORD COUNSEL. NOWHERE IN THE CASE ARE THE DEFENDANT'S FINANCIAL RESOURCES DISCUSSED. THE CASE PRIMARILY FOCUSED ON THE GOVERNMENT'S DUTY TO INFORM THE DEFENDANT OF HIS RIGHT TO COUNSEL AND WHAT CONSTITUTES A WAIVER OF THAT RIGHT. CONSEQUENTLY, THE HOLDING IN JOHNSON IS NOT PARTICULARLY RELEVANT TO AN ANALYSIS OF THE CJA EXCEPT TO THE EXTENT THAT IT RESTATES THE BASIC REQUIREMENT OF THE SIXTH AMENDMENT.

PAGE 3 STATES THAT THE ASSUMPTION UNDER THE CJA IS THAT ATTORNEYS WILL PROVIDE A BETTER DEFENSE IF REASONABLY COMPENSATED FOR THEIR TIME AND EXPENSES. THE CJA REIMBURSES AN ATTORNEY FOR HIS TIME ACCORDING TO A FIXED HOURLY RATE AND FOR OTHER EXPENSES. REIMBURSEMENT IS LIMITED TO A FIXED MAXIMUM. COURT APPOINTED ATTORNEYS ALSO MAY REQUEST THAT INVESTIGATIVE, EXPERT, OR OTHER SERVICES BE PROVIDED. GAO SHOULD BE SENSITIVE TO ARGUMENTS THAT THE CJA DOES NOT TRULY PROVIDE FOR REASONABLE COMPENSATION, IN LIGHT OF THE FIXED FEE SCHEDULE AND THE STATUTORY MAXIMUM, PARTICULARLY SINCE ATTORNEY'S FEES VARY SIGNIFICANTLY AMONG INDIVIDUAL ATTORNEYS AND DIFFERENT PARTS OF THE COUNTRY. ON THE OTHER HAND, A NUMBER OF COURTS HAVE HELD THAT THE CJA WAS NOT INTENDED TO PROVIDE FULL COMPENSATION FOR COUNSEL, U. S. V. HARPER, 311 F.SUPP. 1072 (D.D.C. 1970), OR TO ELIMINATE THE BURDEN OF COURT APPOINTED ATTORNEYS, U. S. V. JAMES, 301 F.SUPP. 107 (N.D.TEX. 1969).

III. THE MAJOR INTENT OF THE CJA - PAGES 4-7

PAGE 4 STATES THAT THE MAJOR INTENT OF THE CJA WAS TO IMPLEMENT THE SIXTH AMENDMENT AND COMPLY WITH THE PRINCIPLES IN JOHNSON. HOWEVER, THIS OVERSTATES THE INTENT OF THE CJA BECAUSE WITHOUT THE CJA, COUNSEL WOULD STILL BE PROVIDED FOR DEFENDANTS UNABLE TO AFFORD REPRESENTATION, ALBEIT ON A PRO BONO BASIS. FN1 IT WOULD BE MORE ACCURATE TO SAY THAT THE CJA FURTHERS THE IMPLEMENTATION OF THE SIXTH AMENDMENT BY PROVIDING FOR PAYMENTS TO COURT APPOINTED ATTORNEYS AND, THEREBY, ENCOURAGES MORE AND BETTER ATTORNEYS TO PARTICIPATE IN PROVIDING REPRESENTATION TO DEFENDANTS UNABLE TO AFFORD COUNSEL. HOWEVER, THE CJA DOES NOT INSURE EXPERIENCED REPRESENTATION AS SUGGESTED ON PAGES 4 AND 5, ALTHOUGH THIS SURELY WOULD BE A GOAL OF ANY SYSTEM PROVIDING FOR COURT APPOINTED ATTORNEYS.

IV. FINANCIAL INABILITY VS. INDIGENCY - PAGES 7-6

THIS ISSUE HAS BEEN DISCUSSED PREVIOUSLY AND THE EXCERPT ON PAGES 9 10 ACCURATELY REFLECTS MY EARLIER COMMENTS. YOUR LEGISLATIVE HISTORY CONTAINS NO CONCLUSIONS ON THIS ISSUE. ONCE AGAIN IT SHOULD BE RECOGNIZED THAT THE CONCEPT OF INDIGENCY IS NOT ALWAYS RELEVANT TO A DETERMINATION OF WHO IS COVERED BY THE CJA.

V. DETERMINATION OF FINANCIAL INABILITY - PAGE 10

THE REFERENCE AT THE BOTTOM OF PAGE 10 TO THE "SAME QUALITY DEFENSE" SHOULD BE VIEWED IN THE SAME LIGHT AS THE PHRASE "EQUAL JUSTICE FOR ALL," DISCUSSED EARLIER.

COURT DECISIONS REINFORCE THE CONCLUSION THAT THE DETERMINATION OF A DEFENDANT'S ABILITY TO AFFORD ADEQUATE REPRESENTATION (YOUR LEGISLATIVE HISTORY REFERS TO INDIGENCY) UNDER THE CJA IS THE COURT'S RESPONSIBILITY AND THAT THE COURT HAS A DUTY TO PROTECT THE RIGHT OF THE ACCUSED TO COUNSEL. SEE E.G., LOLLAR V. U. S., 376 F.2D 243 (D.C.CIR. 1967), U. S. V. TATE, 419 F.2D 131 (6TH CIR. 1969). THE DEFENDANT'S FINANCIAL CONDITION SHOULD BE DETERMINED IN AN EX PARTE HEARING. U. S. V. CHAVIS, 476 F.2D 1137 (D.C.CIR. 1973), REHEARING 486 F.2D 1290 (D.C.CIR. 1973) (DEALING WITH THE DEFENDANT'S REQUEST FOR EXPERT SERVICES).

VI. AMENDMENTS TO CRIMINAL JUSTICE ACT - PAGES 11-22

IN THE DISCUSSION OF THE COVERAGE OF THE CJA ON PAGE 12, YOU STATE THAT THE "ORIGINAL COVERAGE OF THE ACT WAS INTENTIONALLY LOOSE IN STRUCTURE AND NARROW IN SCOPE." I AM NOT SURE WHAT IS MEANT BY THE CHARACTERIZATION THAT THE ACT WAS "LOOSE IN STRUCTURE." FURTHERMORE, I AM NOT COMFORTABLE WITH A CONCLUSION THAT THE SCOPE, IN FACT, WAS NARROW. ADMITTEDLY, THE 1970 AMENDMENTS EXPANDED THE ACT'S COVERAGE BY DELINEATING A NUMBER OF SITUATIONS IN WHICH COURT APPOINTED ATTORNEYS COULD BE COMPENSATED. HOWEVER, THE 1964 ACT EXTENDED COVERAGE TO DEFENDANTS CHARGED WITH FELONIES AND MOST MISDEMEANORS. ALSO, SINCE CONGRESS COULD NOT PREDICT HOW COURTS WOULD INTERPRET THE SIXTH AMENDMENT, IT IS DIFFICULT TO CONCLUDE THAT THE SCOPE ACTUALLY WAS NARROW, AND THAT IF THE SCOPE WAS NARROW, IT WAS DONE INTENTIONALLY. IT WOULD BE MORE USEFUL TO CONCLUDE SIMPLY THAT THE 1970 AMENDMENTS EXPANDED THE SCOPE OF THE CJA TO COVER SITUATIONS NOT ADDRESSED BY THE 1964 ACT.

FN1 WITHOUT THE CJA, COUNSEL STILL COULD BE REIMBURSED FOR CERTAIN EXPENSES. FOR EXAMPLE, 28 U.S.C. 753(F) PROVIDES THAT TRANSCRIPTS WILL BE FURNISHED TO PERSONS APPEARING IN FORMA PAUPERIS AT GOVERNMENT EXPENSE; RULE 15(C) OF THE FED.R.CRIM.P. PROVIDES THAT THE EXPENSE OF TRAVEL AND SUBSISTENCE TO TAKE A DEPOSITION TO BE AT GOVERNMENT EXPENSE; AND RULE 17(B) PROVIDES THAT SUBPOENA AND WITNESS FEES INCURRED FOR THE DEFENSE BE AT GOVERNMENT EXPENSE. HOWEVER, WE KNOW OF NO CASES ALLOWING A COURT- APPOINTED ATTORNEY TO BE COMPENSATED FOR HIS TIME, OR TO BE REIMBURSED FOR GENERAL OUT-OF-POCKET EXPENSES, WITHOUT SPECIFIC STATUTORY AUTHORIZATION. SEE DILLON V. UNITED STATES, 346 F.2D 633 (1965).