President's Message: A System in Crisis and the Wrong Remedy - By Bobby Mims

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Saturday, September 7th, 2013

The rights guaranteed by the Constitution and as told in the Gideon v. Wainwright decision of 50 years ago are being dismantled. The right to counsel guaranteed by the Sixth Amendment and as promised by Gideon is being seriously eroded by budget cuts in the Federal Defender Service and reduced and delayed payments to CJA Panel attorneys.

In Texas, and across the nation, the Federal Defender offices have been the subject of terminations, layoffs, and furloughs of attorneys and staff. Additionally, the government has held up payments to appointed defense counsel, causing financial hardship for solo practitioners and small firms. This is causing an immediate crisis in indigent defense for the country. Already, the indigent resources were limited and the professionals within the system overburdened. With these recent budget cuts and layoffs, our court system is at risk of losing 50 years of progress.

On August 19, 2013, the date of this message, U.S. District Judge Catherine C. Blake of the DC Circuit announced that the Executive Committee of the CJA had decided to defer into FY 2015 up to four weeks of panel attorney payments that otherwise would be payable in FY 2014. Further, the Executive Committee voted to reduce, by $15 per hour, the panel attorney compensation rates for capital and non-capital case representations, which the Judicial Conference has otherwise authorized pursuant to 18 U.S.C. § 3006A(d)(1). This reduced rate is applicable for work performed from September 1, 2013, through September 30, 2014. In other words the sequestration is falling mainly on the defense bar.

This will have a devastating impact on the federal indigent defense system. Our federal criminal justice system cannot be sustained unless all components—prosecution, judiciary, and defense—receive adequate and stable funding. Already this year, deep cuts to the federal public defenders’ budget have required significant layoffs, furloughs of 15–20 days, and the complete elimination of defender training. Further cuts necessitating massive layoffs will almost certainly decimate the federal defender system, degrade the overall quality of federal indigent defense, and undermine the administration of justice. To avert the crisis, Congress will have to restore funding to the Defenders Services account, but the politics in Washington do not bode well for this.

As Federal Defenders are required to turn down cases, indigent defense costs will simply be transferred to pay for court-appointed counsels, who now will be ordered to provide defense services at a discount. Any savings achieved will fall on the backs of the private bar and CJA Panel attorneys. Every federal defendant without resources to hire an attorney is entitled to government-paid counsel; therefore, the notion that savings can be achieved by reducing the federal public defender budget is simply incorrect. The reduction of rates paid to CJA Panel attorneys will reduce the pool of competent attorneys willing to accept indigent cases. Already, judges are cutting vouchers for those being submitted, resulting in financial hardship for many of our members. This is likely to become worse in the coming months, and it would be prudent for members to adjust their finances accordingly.

Recently TCDLA members Warren Wolf and Bud Ritenour argued and won Trevino v. Thaler, 569 U.S. ___ (2013), before the Supreme Court of the United States. In that case, SCOTUS would only appoint one lawyer, so Warren was appointed. Bud was thus precluded from filing any vouchers for his work. Warren was paid much less than his voucher by the court—which he generously shared with Bud. These excellent lawyers were forced to finance the defense out of their own purses. This is an instance where they were denied funding and suffered reduced payments on a case they won. This is an example of the dedication and commitment that criminal defense lawyers have for their case and client. The reduction of rates and the delay of payments by the courts to such lawyers is an attack on the principals of Gideon. I am concerned that this is a glimpse of the future for counsel and for indigent defendants.

The judiciary predicts delays and postponements, which will increase the time defendants spend in expensive pretrial detention facilities. In addition, many federal defender offices that manage the local panel of court-appointed attorneys will be forced to abdicate that responsibility to the judiciary, resulting in increased administrative costs and diminished efficiency despite the reduction of rates paid to panel attorneys.

I frequently hear candidates for high office ask to be elected because they will “run the government like a business.” Besides the obvious that government is not, nor should it be, a business, it is apposite to state that the decision to cut expenditures for the most basic purposes is something that no competent business would do when faced with financial problems. You do not go out of business to stay in business.

The investment made in indigent defense pays huge dividends by ensuring the innocent are acquitted and the guilty con­victed. In Texas, at the state level, we have witnessed the cost of wrongful convictions when indigent defense was inadequate. Millions of taxpayer dollars have been paid to individuals wrongfully convicted and later exonerated. The investment in providing adequate funding for indigent defendants is not a dis­cretionary expense item in the budget. Instead, as Gideon established, it is a basic necessity of the American criminal justice system. Rather than the first item to be cut in the budget, it should be among the last.

A criminal justice system is vital to a free society and de­mocracy. The rule of law is basic to a free society. In the Amer­i­can system of government, an independent judiciary is the engine of freedom. The zealous defense of the individual before the awesome power of the government is a vital limit on government. Without an independent judiciary and a zealous advocate for defendants, democracy cannot long survive. It is vital to democracy and to justice that the poorest of society be most protected in the criminal justice system.

Many fear the rise of governmental power, the militarization of police, and the invasion by intelligence agencies into the privacy of Americans. A free and independent court system and the unassailably right to trial by jury are absolutely vital to democracy. However, within that system only the criminal defense lawyer stands between the citizen accused and the awesome power of the government.

As the Federal Defender Service is being dismantled, it is vital to freedom that the criminal defense lawyers of the Texas Criminal Defense Lawyers Association become even more vigilant in the protection of individual rights of our clients.

Bobby Mims