If 'A' has a positive right against 'B', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance.

Within the philosophy of human rights, some philosophers and political scientists make a distinction between negative and positive rights. According to this view, a positive right imposes a moral obligation on a person to do something for someone, while a negative right merely obliges others to refrain from interfering with someone's attempt to do something.

To state the difference more formally, if 'A' has a negative right against 'B' then 'B' must refrain from acting in a way that would prevent 'A' from doing 'x'. If 'A' has a positive right against 'B', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance. For example, a negative right to life would require others to refrain from killing a person. A positive right to life would require others act to save the life of someone who would otherwise die.

Negative rights may be used to justify political rights such as freedom of speech, property, habeas corpus, freedom from violent crime, freedom of worship, a fair trial, freedom from slavery and the right to bear arms. Positive rights may be used to justify public education, health care, social security or a minimum standard of living.

In the 'three generations' account of human rights, negative rights are often associated with 'first-generation rights', while positive rights are associated with 'second-generation rights'.

This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 20

This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)

D1: OMG, talk about or should I say writing about "advancing argument on behalf of the state."
Does the defendant who is "also denied the opportunity to develop a complete record on the issue on which" ever get this issue concerning opportunities of denied to develop a complete record on the issue of preserving complaints on appeal "in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: by using the record to deny the defendants documentation of prosecutions remarks at Def MTN4NT constitutes "obstruction of justice" and distortion of truth and justice.

For the essence to be taken as fact there would need the 2 prerequisites.....



Thursday, April 03, 2008
* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint .........

Thursday, April 3, 2008

* Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them. State v Herndon (February 28, 2007, PD-1954-03)

* A trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. State v Herndon (February 28, 2007, PD-1954-03)

* Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. State v Herndon (February 28, 2007, PD-1954-03)

* Def failed to take steps required to preserve error where his motion for mistrial following admission of evid in violation of motion in limine was too late. In instant case, grounds for def's motion for mistrial first became apparent during testimony of witness, yet def failed to move for a mistrial until after both that witness and following witness had concluded their testimony. Griggs v State (January 31, 2007, PD-0727-05)

* Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court. Sanchez v State (December 13, 2006, PD-1754-05)

* Def's motion for new trial was sufficient under Rule 33.1 to preserve for review his "unconstitutionally vague as applied" challenge to sec. 42.07(a)(4) PC. Def filed pretrial motion to quash information, citing due process and due course of law clauses of US and Texas constitutions and arguing that terms of the statute were unconstitutionally vague; at start of trial, before any evidence had been adduced, def urged his motion to quash and argued that "the vagueness" of the statute was "readily apparent"; during guilt stage (once during c/w's testimony and once after both sides had rested) def objected again that the language of the statute was "unconstitutionally vague." Each time def objected, the trial court overruled his objection. Def filed a timely motion for new trial and presented it to the trial court for a ruling. In his motion, def, again citing the due process and due course of law clauses of US and Texas constitutions, argued the statute was "unconstitutional as applied to him in his case." Although def did not use the word "vague" or "vagueness" in his motion for new trial, he did argue that "[n]ow that the evidence has been adduced," the trial court could "more readily discern the unconstitutionality of the statute" as it had been applied against him. Motion for new trial was later overruled by operation of law. Motion for new trial was adequately specific on the vagueness-as-applied claim: Although the word "vague" or "vagueness" appeared nowhere in the motion, any reasonable trial judge probably would have understood the motion, in context, to be asserting an "unconstitutionally vague as applied" challenge to the statute, since def's consistent complaint throughout trial had been that the statute was too vague to be enforceable. On the other hand, no reasonable trial judge would have understood the motion for new trial, even in context, to be asserting an "unconstitutionally overbroad as applied" challenge to the statute. Neither the word "overbroad" nor the word "overbreadth" appeared in the motion for new trial, and at no point during the trial did def make an overbreadth challenge to the statute. The motion for new trial was timely within the meaning of Rule 33.1: (1) It provided trial court with opportunity to take corrective action - granting the motion for new trial - without burdening the parties and the judicial system with a costly appeal and retrial. (2) It gave the state a fair opportunity to respond. Although def could have filed a motion to dismiss after the close of all the evidence, his delay until the motion for new trial did not prejudice the state in any way. (3) Def's delay until his motion for new trial did not impair the orderly and effective presentation of the case to the jury. Cause remand to court of appeals so that it may reconsider def's point of error. Gillenwaters v State (September 27, 2006, PD-1443-05)

* Actions and statements of trial judge unquestionably indicated judge overruled def's motion to suppress, and issue was preserved for review, where record showed that at end of hearing on def's motion to suppress trial judge stated, "I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it - - to have the opportunity to read whatever the State's brief before I - - where I can see where both of you are coming from and then view the tape, and I'll rule." The last line on trial court's docket sheet stated, "appeal preserved as to issues presented." Def's amended notice of appeal stated, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing def's amended notice was trial judge's certification of def's right to appeal. Trial judge certified that def's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Montanez v State (April 26, 2006, PD-0894-04)

* Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)

* Where def claimed juror was asleep during trial, court of appeals erred in concluding nothing was preserved for review on the ground that counsel's statement in the trial record that a juror was sleeping was no evid of the matter; counsel's trial record statement was some evid; cause remanded for further proceedings. Thieleman v State (December 14, 2005, No. PD-1743-04)

* A trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v State (December 14, 2005, No. PD-1743-04)

* Ordinarily, after court of criminal appeals concludes that the court of appeals erred in holding that a defendant did not preserve his complaint for appellate review, it would remand to that court to determine whether the trial court abused its discretion. In instant case, because the court of appeals had already performed a thorough review of the substance of the def's motion for continuance, court of criminal appeals did not remand, but instead addressed def's complaint that the court of appeals' opinion did not accurately reflect the record. Harrison v State (December 14, 2005, No. PD-1511-04)

* Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)

* It was error for court of appeals to reverse conviction and order case dismissed, on theory of prosecutorial vindictiveness that was never pleaded, proved, or ruled upon in trial court. Def's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, def never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The state was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. Neal v State (November 17, 2004, No. 1559-03)

* Waiver requires "an intentional relinquishment or abandonment of a known right or privilege" by actual renunciation or intentional conduct inconsistent with claiming that known right. Wappler v State (June 30, 2004, No. 772-03)

* The concept of "systemic requirement" has to do with preservation of error, while the concept of "structural error" has to do with harmfulness of error. A "structural error" is not subject to a harmless-error test. Mendez v State (June 30, 2004, No. 817-01)

* A "systemic requirement" (also known as an "absolute requirement or prohibition") is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the application of the law. A party may be estopped from complaining about an error that it invited, however. Mendez v State (June 30, 2004, No. 817-01)

* The general requirement for preservation of complaints for appeal is Rule of Appellate Procedure 33.1(a). It could be summarized as requiring a timely, specific objection and a ruling by the trial court. Rule 33.1(a) was meant to reaffirm the basic principles of adversary litigation, not to amend or repeal them. It applies only to actions of the trial court concerning which a party forfeits the benefit of a right belonging to him if he does not complain about it at trial. The rule does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal. That is, there are two types of complaints to which Rule 33.1(a) does not apply. Mendez v State (June 30, 2004, No. 817-01)

* Court of criminal appeals listed several ways that statement in Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Cr. App. 1999), about Rule 33.1(a) ["Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1."] was incorrect: (1) It omitted one of the types of complaints to which the rule does not apply: complaints about rights that are waivable only. (2) It incorrectly described complaints about systemic requirements as "complaints involving fundamental constitutional systemic requirements." Systemic requirements are not necessarily constitutional. Ibarra used the word "fundamental" to describe the systemic requirements, which could be misleading. "Fundamental" has been used to identify complaints that may be raised for the first time on appeal. Questions of "fundamental error" now are considered in the framework of Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993). (3) It was a mistake in Ibarra to say that noncompliance with Rule 33.1(a) results in complaints being "waived." Marin carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). A statement that is correct, and perhaps less susceptible of being misread, would be, "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v State (June 30, 2004, No. 817-01)

* A law that puts a duty on the trial court to act sua sponte creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. Mendez v State (June 30, 2004, No. 817-01)

* A defendant may preserve error for appeal by moving for a mistrial without first making an objection and requesting an instruction to disregard, and in such case it is error to overrule such a motion for mistrial when an instruction to disregard could not have cured the harm of the objectionable event. Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence - that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review, because it is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction to disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Accordingly, when a party's first action is to move for mistrial, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead to reversal on an appeal by the party who did not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party. Young v State (June 9, 2004, No. 904-02)

* Court of Appeals erred in addressing the merits of def's claim regarding one of his challenges for cause, where def stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying def's request for an additional peremptory strike. Although court of appeals was correct that def fulfilled the steps for preservation of error regarding denial of a challenge for cause, in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. The trial court's ruling was based not on the record but on the judge's erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Defense counsel said nothing to cast doubt on the trial court's recollection of events. The trial court had no obligation to grant def's request for additional peremptory strikes unless def first showed his challenge for cause should have been granted. Loredo v State (April 7, 2004, No. 1075-03)

* When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)

* On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)

* Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)

* Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)

* Def was estopped on appeal from complaining of trial court denying mistrial, and trial court instead excusing juror, after was learned during trial that juror knew person who was father of victim in extraneous offense and who might testify, where at trial def made alternative requests for mistrial and for excusal of juror. Def could not complain where trial court granted one of options requested by def. Jones v State (November 5, 2003, No. 74,060)

* Rule 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a) the record must show (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. Geuder v State (September 10, 2003, No. 1005-02)

* Court of criminal appeals has authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act. Castaneda v State (July 2, 2003, No. 2012-01 through 2016-01)

* No harm shown on claim was error to refuse to rule on def's formal bill of exception under rule 33.2, where much of info included in her formal bill of exception was already in record on appeal, and remaining info did not relate to her claims on appeal. Routier v State (May 21, 2003, No. 72,795)

* It was error for court of appeals to rule that def had preserved error by proper objection to gang-related evid, where counsel did not object to all the gang-related evid, failed to request a running objection, and failed to request a hearing outside presence of jury on admissibility of gang-related evid. Martinez v State (February 12, 2003, No. 0185-02)

* It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)

* No merit to contention that state's tactics for introducing document prejudiced def by requiring def to repeatedly object in front of jury, where record did not support def's assertions. Canales v State (January 15, 2003, No. 73,988)

* Nothing presented for review on claim was error to overrule objection to permitting prosecutor to read letter to jury with prejudicial inflection, where def made objection before letter was read, trial court ruled state could read letter and def could object to manner of reading letter during reading of letter, and def made no objection during reading of letter. Canales v State (January 15, 2003, No. 73,988)

* Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)

* No merit to state's contention that under rule 33.1 def failed to preserve error because he did not obtain a ruling on his objection to trial court granting challenge for cause. An objection after a challenge for cause is sustained is by itself sufficient to preserve error. So long as the objection is made immediately after the challenge is granted, the discharge of the prospective juror from service is tantamount to an adverse ruling on the objection. Ortiz v State (September 25, 2002, No. 73,692)

* Where def's motion to suppress asserted that traffic stop and search were done without a warrant, under 28.01 sec. 1(6) the motion to suppress was itself an allegation of a Fourth Amendment violation, so was error for court of appeals to rule that failure to allege absence of warrant in def's affidavit submitted to trial court in support of motion authorized trial court to deny motion; court of appeals should have considered both the motion to suppress and the affidavits in addressing def's complaint about the trial court's ruling on that motion. Bishop v State (September 25, 2002, No. 1887-01)

* It was error for court of appeals to reverse trial court's decision on a theory not presented to the trial court and upon which the trial court had no opportunity to rule. This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)

* State's confession of error in U.S. Supreme Court was contrary to state's procedural law for presenting a claim on appeal, as well as U.S. Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims. After independent examination of the claim, court of criminal appeals held that no complaint was presented for appellate review because def did not make a trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)

* Rule 33.1 provides in part that "as a prerequisite to presenting a complaint for appellate review," a timely request, objection or motion must be made and ruled upon by the trial court. This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time - when the mistakes are alleged to have been made. Hull v State (January 30, 2002, No. 1812-00)

* Def waived complaint regarding trial court's "zero tolerance" probation where he raised his complaint for the first time on appeal. Fact that "zero tolerance" was not a listed condition in trial judge's probation order did not result in situation where there was nothing to object to at the time of sentencing. Fact that written probation conditions stated that a violation "may result" in revocation, did not entitle def to rely upon that representation rather than the court's stated "zero tolerance" policy. Def was not without grounds on which to move to recuse the judge until after the judge actually applied the zero tolerance policy and revoked appellant's probation. Record showed that def understood the "zero tolerance" policy and was not confused by the court's admonishment in light of the written conditions, and that def understood the "zero tolerance" policy to be overriding and controlling. At the very least def could have objected to a discrepancy between the written conditions and the court's stated policy. Hull v State (January 30, 2002, No. 1812-00)

* Appeals court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Hayden v State (November 14, 2001, No. 610-00)

* No merit to state's contention that def did not preserve error because his written motion to suppress did not attempt to suppress expert's testimony, but only attempted to suppress the results of the breath test, where at the suppression hearing def argued for the suppression of expert's testimony on the grounds that it was not reliable, and trial court denied the motion to suppress after hearing def's argument. Def timely informed the trial court of his grounds with sufficient specificity and, therefore, he preserved error. Mata v State (June 6, 2001, No. 133-00)

* One of the obvious linguistic differences between Rule 33.1(a) and prior Rule 52(a) is that Rule 33.1(a) allows for a ruling by the trial court "either expressly or impliedly" while Rule 52(a) simply required that the party obtain "a ruling." Gutierrez v State (January 31, 2001, No. 693-00)

* While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)

* Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)

* Helms Rule (that a knowing and voluntary guilty plea waives all nonjurisdictional errors "that occurred prior to the entry of the guilty plea.") did not apply to def's challenge to constitutionality of sex registration law imposed as condition of probation. Regardless of when the trial court ruled that there would be a condition that required def to register as a sex offender, the plea of guilty did not "waive" the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of recent decision in Young v. State, 8 S.W.3d 656 (Tex. Cr. App. 2000), that Helms Rule no longer applies, and a valid plea of guilty or nolo contendere does not "waive" or forfeit the right to appeal a claim of error, when the judgment of guilt is not rendered independent of, and is supported by, the error. If the trial court's ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not "waive" this issue. Cause remanded for consideration of def's points of error. Brasfield v State, 18 S.W.3d 232 (May 24, 2000)

* Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Nothing preserved for review on claim of exclusion of evid, where trial court never ruled on the admissibility of X's testimony. Although def objected to the trial court's refusal to rule at the time it was first offered, after the state rested the trial court gave def the opportunity to introduce X's testimony and def made no subsequent attempt to introduce it. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Reasons previously given by court of criminal appeals for not enforcing a procedural bar under Rule 33.1(a) to raising ineffective assistance of counsel claim, include: (1) A defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. (2) There is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* Court of Appeals erred in concluding that def forfeited his right to complain that his attorney rendered ineffective assistance of counsel by failing to comply with Rule 33.1(a). There was no evidence in the record that def waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for def to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. In instant case, the time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

* Under Rule 33.1, where issue was first raised at hearing on motion for new trial, nothing was preserved for review on claim case should be reversed because def (a Mexican national) was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations (which grants a foreign national who has been arrested, imprisoned, or taken into custody a right to contact his consulate and requires the arresting authorities to inform the individual of this right ôwithout delayö). Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

* Where def objected at trial to the failure to record bench conferences, and after the objection all conferences were recorded, the objection was untimely as to the earlier conferences. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* When bench conferences are not recorded, an objection and request for a mistrial without some attempt to supplement the trial record with the substance of the unrecorded bench conferences is an inadequate basis for alleging that anything pertinent for the purpose of appeal transpired. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* It was not error to refuse to instruct jury to disregard unresponsive answer by defense witness during direct examination (emotional outburst by def's mother berating the court with obscenities), where def did not object to the outburst at earliest opportunity, but waited until end of testimony. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* Where def, after state rested, said ôAt this time the defense would like to make an opening statement,ö and court ruled ôThat will be denied,ö and defense counsel said, ôOkay. In that case we will call [our first witness],ö def preserved the right to raise issue on appeal that the ruling was in error. In context, the word ôOkayö did not waive issue. Def did all that is generally required to preserve this complaint for review of appeal. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint for appellate review. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* Rule 33.1 ensures that trial courts are provided the opportunity to correct their own errors before a case need be appealed. If a defendant fails to inform the trial judge of the potential error through a timely request, objection, or motion, there is no such opportunity for correction at the trial level. It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed. Vidaurri v State (June 20, 2001, No. 515-99)

rules (TRAP Rule 33. Preservation of Appellate Complaints.)

* When def requests a procedure that varies from proper procedure, and his request is followed, he can obtain relief only if the proper procedure is an ôabsolute requirement or prohibitionö to be implemented regardless of the partiesÆ wishes. Busby v State, 990 S.W.2d 263 (March 31, 1999)

issue not preserved (TRAP Rule 33. Preservation of Appellate Complaints.)

* Nothing presented for review on claim trial court erred in admitting certain testimony during the punishment phase of trial where was no trial objection. Brooks v State, 990 S.W.2d 278 (March 31, 1999)

* Where def made no request to proceed ex parte concerning his request for a jury consultant, he failed to preserve error on issue of denial of ex parte hearing. Busby v State, 990 S.W.2d 263 (March 31, 1999)

Labels: Leavenworth, Political Prosecution. Kangaroo Court, What is behind the White House?

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Labels: 13th Court of Appeals, Marshall dissents, Marshall dissents in Strickland v Washington, RESPECT, Texas Justice injustice for poor defendants, THINK

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Thursday,

The second mistake the court of appeals made was that it did not consider appellant=s failure to seek a curative instruction.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0051-06





JULIUS ARCHIE, Appellant



v.



THE STATE OF TEXAS



ON STATE=S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

McLENNAN COUNTY



Keller, P.J., filed a concurring opinion.



The court of appeals made two major mistakes in its analysis.

The first mistake was compound in nature: the court of appeals misidentified the error being considered in this case, and as a result, erred in applying the Abeyond a reasonable doubt@ harm standard of Rule 44.2(a).[1] As Chief Justice Gray noted in his separate opinion, the question of whether the trial court abused its discretion in denying the motion for mistrial is not properly posed as whether the trial court committed an error that was harmful, but instead as whether the trial court erred at all.[2] In addressing the denial of a motion for mistrial in Hawkins, we said:



Although the parties and the Court of Appeals have approached the issue as one of harm, that is not a correct characterization of the issue before us. A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake. Here, the trial court sustained the defense objection and granted the requested instruction to disregard. The only adverse ruling B and thus the only occasion for making a mistake B was the trial court's denial of the motion for mistrial. Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.[3]



The question of whether a court abused its discretion in denying a motion for mistrial based on improper argument involves most, if not all, of the same considerations that attend a harm analysis for overruling an objection to argument.[4] But that does not mean that the same standards are employed in determining whether reversal is required.[5] The Abeyond a reasonable doubt harmless@ standard imposed when a trial court overrules an objection is one that heavily favors reversal. Common sense would dictate that the same analysis would not apply when the trial court sustains the objection. Indeed, in Greer v. Miller, addressing a very similar situation, the Supreme Court concluded that Chapman=s[6] Abeyond a reasonable doubt@ standard was inapplicable.[7] Instead, when the only alleged error was the trial court=s refusal to grant a mistrial, the standard for determining whether a trial court abused its discretion in that regard was one that heavily favors affirmance: whether the Aprosecutorial misconduct . . . so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.@[8]

The second mistake the court of appeals made was that it did not consider appellant=s failure to seek a curative instruction. In Young v. State, we explained that, while a defendant does not completely forfeit review when he moves for a mistrial without first requesting an instruction to disregard, relief on the mistrial claim is appropriate only when the error could not have been cured by an instruction to disregard.[9] In Greer, the Supreme Court came to the same conclusion, observing that defense counsel Abore primary responsibility for ensuring that the error was cured in the manner most advantageous to his client.@[10] Because appellant failed to request an instruction to disregard, the court of appeals erred in considering in its analysis the alleged weakness of the trial court=s curative instruction. If the defendant was entitled to a better instruction, he should have requested it. Under the circumstances, the appellate court should have analyzed the issue not in light of the instruction actually given but in light of the most protective instruction the defendant was entitled to receive.

And for this reason, I disagree with the court=s decision to Aoverrule@ the State=s first ground for review. The point of that ground was that appellant forfeited the higher level of scrutiny (a Chapman Abeyond a reasonable doubt@ harm analysis) that he might have obtained if he had requested, and was denied, an instruction to disregard. The Court says that the instruction that was given was Afunctionally@ an instruction to disregard,[11] but I disagree. The instruction was a curative instruction of sorts, but it was not an explicit instruction to disregard, and a party with a valid objection is entitled to an explicit instruction, upon request. Here, there was no request, a fact the court of appeals failed to take into account.

The Court Aoverrules@ the State=s second ground, regarding Adirect@ versus Aindirect@ comments on a defendant=s failure to testify, I would simply refrain from addressing the question because, under any characterization of the comment, an analysis under the correct standards clearly shows that the trial court did not err in denying the motion for mistrial. With regard to the first prong of the Hawkins analysis (severity/prejudicial effect), the prosecutor=s comment did not impart any information to the jurors that they did not already have B they already knew appellant had not testified at the punishment phase of the trial. And as the court of appeals observed, the prosecutor did not pursue this line of argument. With regard to the second prong (curative measures), we must assume the trial court would have issued a specific instruction to disregard if appellant had requested one. Nothing in the record suggests that a timely, specific instruction to disregard would have been insufficient to cure any prejudice associated with the remark. Finally, with respect to the third prong (certainty of punishment), the punishment-related evidence against appellant was strong. Appellant had a prior felony conviction and seven misdemeanor convictions, including convictions for violating a protective order and for family violence assault. A prior girlfriend had testified to a pattern of abuse and to a harrowing incident similar to the one described by the complainant in this case. Even appellant=s current girlfriend admitted to being on the receiving end of at least one act of abusive behavior. In light of this evidence, the court of appeals itself conceded that the same punishment would likely have been assessed regardless of the comment. Under the circumstances, I believe that the court of appeals was incorrect in concluding that the trial court erred in denying the motion for mistrial.

With these comments, I concur in the Court=s judgment.

Date filed: May 2, 2007

Publish





[1] Justice Reyna issued a lead opinion, which was not joined in its entirety by either of the other members of the court. Justice Vance, in a concurring and dissenting opinion, joined Justice Reyna in concluding that the trial court erred in denying a mistrial and that the error was harmful. Chief Justice Gray issued his own concurring and dissenting opinion, which disputed this manner of analyzing the issue.

[2] Archie v. State, 181 S.W.3d 428, 434 (Tex. App.BWaco 2005)(Gray, C.J., dissenting); Hawkins, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).

[3] Hawkins, 135 S.W.3d at 76-77.

[4] Id. at 77.

[5] Id.

[6] Chapman v. California, 386 U.S. 18 (1967).

[7] 483 U.S. 756, 763-767. In Greer, the prosecutor asked a question that commented on the defendant=s post-arrest, post-Miranda silence: AWhy didn=t you tell this story to anybody when you got arrested?@ Id. at 759. Defense counsel objected and requested a mistrial. Id. The trial court declined to grant a mistrial but sustained the objection and instructed the jury to Aignore [the] question, for the time being.@ Id. (brackets in original).

[8] Id. at 765.

[9] 137 S.W.2d 65, 69-71 (Tex. Crim. App. 2004).

[10] 483 U.S. at 767 n. 8.

[11] Court=s op. at 5.

If I am not entitled to an attorney then where is ur MTN to withdraw?

TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION
CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE
FastLaws™ Home
Penal Code Table of Contents
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Sec. 36.05. Tampering with Witness.
(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 721, Sec. 1, eff. Sept. 1, 1997.

"Findings of Fact and Conclusions of Law and Recommendations for Relief to the Texas Court of Criminal Appeals." Housekeeping out ways ur innocence"

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NUMBER 13-07-00128-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG EX PARTE: SERGIO CASTILLO On appeal from the 103rd District Court of Cameron County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Chief Justice Valdez Appellant, Sergio Castillo, appeals from the trial court's denial of his pre-trial writ of habeas corpus. We affirm. I. Background On July 1, 1994, appellant was convicted of the offense of attempted murder. See Tex. Penal Code Ann. § § 15.01, 19.02 (Vernon 2003). He was sentenced to 25 years in the Institutional Division of the Texas Department of Criminal Justice. In an unpublished opinion this Court affirmed appellant's conviction. On September 11, 2002, appellant, pursuant to article 11.07 of the code of criminal procedure, filed a post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005). In his writ, appellant asserted both an actual innocence claim and prosecutorial misconduct premised on the State's withholding of exculpatory evidence. On June 4, 2003, appellant's writ was received by the Texas Court of Criminal Appeals. See id. § 3(a). On March 14, 2006, the trial court entered "Findings of Fact and Conclusions of Law and Recommendations for Relief to the Texas Court of Criminal Appeals." The trial court determined that (1) the State failed to disclose material evidence favorable to the accused in violation of due process rights guaranteed by the Fourteenth Amendment, and (2) evidence of appellant's guilt is far outweighed by the evidence of appellant's innocence. The Texas Court of Criminal Appeals delivered its opinion on June 21, 2006. See Ex parte Castillo, No. AP-74,460. In its opinion, the Court of Criminal Appeals adopted the recommendations of the trial court, holding that appellant had been denied exculpatory material by the State and granted relief as follows: "Relief is granted. Appellant is remanded to the sheriff of Cameron County to answer the indictment." Id. The opinion is silent with regard to appellant's actual innocence claim. On remand, the State sought to schedule appellant's case for retrial. Appellant, in order to prevent his retrial, filed the present petition for writ of habeas corpus. In his petition, appellant alleged that the State's attempt to re-prosecute him is barred by the principle of collateral estoppel. The trial court denied relief. This appeal ensued. II. Analysis In a single issue, appellant argues that the State is barred from proceeding to trial on the offense of attempted murder because the trial court made a judicial finding that appellant "unquestionably establish[ed] his actual innocence" of the act of shooting Sergio Garcia, Jr. with a firearm. Appellant asserts that the court of criminal appeals' decision is irrelevant to appellant's straightforward claim that the district court's initial fact finding bars relitigation of those findings. We disagree. The theory of collateral estoppel is embodied in the constitutional guarantee against double jeopardy and precludes the State from twice litigating issues of ultimate fact. See Ashe v. Swenson, 397 U.S. 436, 443 (1970). Collateral estoppel only applies after an issue of fact has been determined by a valid and final judgment. See id. at 444; Ex parte Tarver, 725 S.W.2d 195, 198 (Tex. Crim. App. 1986); Gongora v. State, 916 S.W.2d 570, 574 (Tex. App-Houston [1st Dist.] 1996, pet. ref'd). Here, however, there is no valid and final judgment. When a trial court's judgment is reversed on appeal, the trial court's judgment is no longer valid for purposes of collateral estoppel. See Garcia v. State, 768 S.W.2d 726, 729 (Tex. Crim. App. 1987); Shute v. State, 945 S.W.2d 230, 231-32 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd); Ex parte Campbell, 872 S.W.2d 48, 49 (Tex. App.-Forth Worth 1994, pet. ref'd). The Texas Court of Criminal Appeals granted appellant's claim for relief and, in effect, vacated his original conviction and sentence. A new trial is then not barred. See Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997) (holding that the proper remedy after a finding of prosecutorial misconduct is a reversal of conviction and remand for new trial). A claim of collateral estoppel cannot flow from an invalid judgment of conviction which is not final. See Garcia, 768 S.W.2d at 729. The doctrine of collateral estoppel, therefore, is inapplicable. Further, appellant's reliance on the trial court's findings of fact to support his collateral estoppel claim is clearly incorrect. By legislative mandate, after final conviction in a felony case, any writ of habeas corpus must be made returnable to the court of criminal appeals. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(a) (Vernon 2005). State trial courts are without jurisdiction to grant relief sought in a post-felony conviction writ of habeas corpus, and any order purporting to do so is void. Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985); Parr v. State, 206 S.W.3d 143, 145 (Tex. App.-Waco, 2006 no pet.). Appellant cites to no authority to support his position that a trial court's findings of fact are deemed a final judgment for purposes of collateral estoppel. On the contrary, it is well established that the Court of Criminal Appeals is not bound by the finding of a trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court's findings. See, e.g., Ex parte Olivares, 202 S.W.3d 771, 772 (Tex. Crim. App. 2006) (citing Ex parte Bagley, 509 S.W.2d 332, 335 (Tex. Crim. App. 1974)). Thus, without a final judgment to support his collateral estoppel claim, appellant's argument on appeal is without merit. Appellant's sole issue is overruled. III. Conclusion We affirm the trial court's order denying appellant's application for writ of habeas corpus. ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 30th day of August, 2007.

Ex Parte Axel requires an attorney to represent their client until the attorney expressly asked to withdraw

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Page 1
GOOD PRACTICES FOR PANEL
ATTORNEY PROGRAMS IN THE
U.S. COURTS OF APPEALS
Jon Wool
Claire Shubik
Vera Institute of Justice
January 2006
Page 2
Executive Summary
More than 9,000 criminal defendants who file appeals in United States federal courts each
year are financially eligible for government-funded counsel under the Criminal Justice Act
(CJA).
1
In more than half of these cases, the defendants are represented by attorneys from a
federal defender organization, and the others are assigned a private attorney, commonly
referred to as a “CJA panel attorney.” Each of the nation’s 12 geographic circuit courts of
appeals has its own system for assigning counsel. Each has a written plan that provides a
broad outline of how it will manage this process; subsection (a)(3) of the CJA provides for
each circuit judicial council to supplement its district court CJA plans with appellate
provisions. Many details of a court of appeals’ practices, however, are not captured in these
plans, or in court rules or other documents, and there is no nationwide compilation of court of
appeals practices.
The Administrative Office of the U.S. Courts contracted with the Vera Institute to
explore circuit panel attorney systems and to identify those practices that promote quality
representation and efficient administration of the CJA panel attorney program at the circuit
level. To that end, Vera researchers reviewed CJA-related documents and conducted
telephone interviews with a number of judges, court administrators, CJA panel attorneys, and
federal defenders in every circuit. In addition, researchers conducted in-person interviews to
examine circuit-specific practices in the three circuits—the Second, the Tenth, and the
Eleventh—that were selected for in-depth inquiry.
The judges, administrators, and practitioners discussed both the challenges they face
and the practices that have proven effective in responding to them. The following “good
practices” for the administration of court of appeals CJA panel attorney programs were
identified:
• Continuity of counsel on appeal. The circuit rules that govern the appointment,
withdrawal, and/or substitution of counsel for criminal appeals should provide for a
flexible approach, rather than mandating that the CJA counsel appointed at the district
level continue to represent the defendant on and through the appeal. There should be
significant deference to the position of trial counsel regarding whether continuity is (1)
in the best interests of the client and (2) consistent with counsel’s professional skills
and obligations. Courts of appeals should develop mechanisms for addressing motions
to withdraw by CJA trial counsel that are made in the district court at the conclusion
of the case; such mechanisms must assure that the defendant is continuously
represented.
1
18 U.S.C. §3006A.
Page 3
• Circuit CJA panels. Circuits should establish panels of well-qualified attorneys for
appellate-level appointments. These panels should be established and maintained
circuit-wide—or, in very large circuits, in some or all of the districts within the
circuit—rather than by individual circuit or district judges. Courts of appeals should
encourage training opportunities for new members of CJA appellate panels, and
consider whether to mandate training as a qualification for membership on the panel.
• Federal defender organization appellate specialists. In conjunction with the circuit
CJA panels, courts of appeals should encourage the establishment of, and reliance on,
appellate specialist positions within one or more federal defender organizations in the
circuit.
• Appellate CJA panel size. Courts of appeals should periodically adjust appellate panel
size by finding the appropriate balance between attorney skills and appeals court
appointment needs (including the number of “cold-record” appeals), thereby
maximizing quality and ensuring efficiency.
• Selection process. The selection and review process for appellate CJA panel attorneys
should be overseen by a committee made up primarily or entirely of criminal defense
attorneys, including experienced appellate practitioners. The selection process should
be rigorous, and all attorneys who serve on the panel should undergo periodic review.
• Appointment process. Appellate CJA panel attorneys should be assigned to cases on a
rotating basis. However, the appointment system also should be flexible, to allow for
appointments that pair complex cases or challenging defendants with qualified
attorneys with the appropriate skills. Courts of appeals should develop a process—
such as through appointments administered by a CJA supervising attorney or a federal
defender office that also oversees selection and review—for evaluating the special
skills of attorneys and the needs of the case and the defendant.
• Compensation review. Courts of appeals should explore limiting the nature and extent
of the judicial role in reviewing compensation requests and streamlining the second-
level review of excess compensation claims for both trial and appeals court
representations. A single individual or coordinated team—well-grounded in the
practical and legal challenges of appellate defense practice—should administer the
attorney compensation process. Consideration should be given to the use of a CJA
supervising attorney or a federal defender office in the circuit. In court rules or in
advice-to-counsel letters sent with each appointment, courts of appeals should provide
information reflecting pertinent Judicial Conference Guidelines and the court’s
procedure for voucher review. Attorneys should be notified of proposed voucher
reductions and the reasons for them, and should be provided with an opportunity to
Page 4
explain why reconsideration is appropriate. Courts of appeals should make it a priority
to process compensation requests as expeditiously as possible.
This report will discuss the development of these good practices and examine how they are
being implemented in the federal courts of appeals.
Page 5
Acknowledgments
We are grateful to the judges, attorneys, and administrators who work and practice in the
federal courts of appeals. This report is based on their insights. Those who work in the
Second, Tenth, and Eleventh Circuits—sites of our most in-depth analysis—were especially
generous with their time, making themselves available for consultation and providing us with
data for our review. For guidance, we often turned to the panel attorney representatives on the
Administrative Office of the U.S. Courts’ Defender Services Advisory Group (comprised of
eight federal defenders and seven CJA panel attorney district representatives) and to the staff
of the Office of Defender Services of the Administrative Office, both of which provided
critical assistance. They share a commitment to improving the quality of representation for
clients with court-appointed counsel. We also are very grateful for the generous and always
top-notch assistance of Lisa Yedid Hershman.
Page 6
Table of Contents
Introduction ...........................................................................................................1
Methodology of the Study.............................................................................2
The Circuit Plans...................................................................................................4
Continuity of Representation.................................................................................6
Promoting Efficiency in Appellate Practice ...................................................7
Promoting Quality Appellate (and Trial Court) Representation.....................8
Approaches to Continuity of Representation ..............................................10
Continuity good practices ......................................................................13
Administration of the Appellate Panel .................................................................14
Utilizing an Appellate Panel........................................................................14
Appellate panel good practices..............................................................17
Panel Size ..................................................................................................17
Good practices for determining panel size.............................................18
Panel Selection and Review.......................................................................19
Good practices for panel selection and review ......................................22
The Appointment Process ..........................................................................22
Appointment good practices ..................................................................25
Compensation Processes...........................................................................25
Efficiency ...............................................................................................26
Consistency...........................................................................................28
Fairness.................................................................................................29
Compensation decision-making.............................................................31
Delegating review responsibilities to an experienced administrator.......32
Good practices for compensation processes.........................................33
Conclusion ..........................................................................................................35
Suggestions for Implementing Improvement.......................................................36
Page 7
Introduction
Every year in the federal circuit courts of appeals, there are more than 9,000 criminal appeals
in which defendants are financially eligible for court-appointed counsel under the Criminal
Justice Act (CJA) and related statutes.
2
Slightly more than half are represented by attorneys
employed by federal defender organizations, and the others are assigned to panel attorneys—
private attorneys appointed by the court from a formal or informal list, or “panel.”
3
Although
the CJA determines who is eligible for publicly-funded representation—and establishes the
hourly rates and maximums that govern attorney compensation and reimbursement—each of
the 12 courts of appeals establishes its own administrative procedures for managing the
system by which counsel are assigned and paid.
This model has allowed the development of circuit-specific assigned counsel practices,
but at the same time has led to a lack of uniformity. The methods by which CJA attorneys are
selected, appointed, and compensated for appellate representation vary significantly among
the circuits. The Administrative Office of the U.S. Courts
4
contracted with the Vera Institute
of Justice to conduct a study of the courts of appeals’ CJA panel attorney programs.
5
This
report flows from that study; it describes the significant features of these programs and sets
out what judges, practitioners, and administrators have identified as good practices for panel
attorney systems.
After describing our methodology, we discuss various elements of court of appeals’
CJA plans. Turning to circuit practices, the report begins with the subject of continuity of
representation—the extent to which counsel appointed to represent a person at trial is required
to continue the representation on appeal. This overarching issue, about which there are
differing opinions, is key to determining how an appellate panel attorney system is structured.
Next, the report considers various administrative matters that are central to panel
2
18 U.S.C. §3006A; 18 U.S.C. §3005; and 21 U.S.C. §848(q). See U.S. Constitution, Amendment VI (“In all
criminal prosecutions, the accused shall enjoy the right … to have Assistance of Counsel for his defense”);
Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“[I]n our adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him. This seems to us to be an obvious truth.”).
3
In fiscal year 2004, defenders were assigned to 4,950 appeals. In the same period, panel attorneys submitted
4,453 vouchers for appellate representations.
4
The Administrative Office of the United States Courts is the administrative arm of the federal judiciary. Its
Director is responsible for overseeing the expenditure of funds appropriated by Congress for the administration
and operation of federal circuit and district courts, as well as various programs and activities placed under the
judiciary’s supervision, including the Defender Services Program.
5
A similar study addressing panel attorney practices in the district courts was conducted in 2002. Jon Wool, K.
Babe Howell, and Lisa Yedid, Good Practices for Federal Panel Attorney Programs: A Preliminary Study of
Plans and Practices (New York: Vera Institute of Justice, December 2002) (hereafter referred to as District
Court Good Practices). After analyzing that report, the Committee on Defender Services of the Judicial
Conference of the United States endorsed a set of Core Principles for Criminal Justice Act (CJA) Panel
Management and Administration (hereafter referred to as Core Principles.) Available on-line at
(accessed October 19, 2005).
Page 8
Vera Institute of Justice 2
management: whether to use a CJA specialized appellate panel; the optimal size of such a
panel; the ways in which attorneys are selected and their performance is monitored for
continued membership on the panel; how attorneys are appointed to CJA appeals; and the
many issues involved in compensating panel attorneys for their services.
Although the good practices set forth in this report are successful models, one size
necessarily does not fit all, and it may not be appropriate to incorporate specific practices into
another circuit without adaptation. Each circuit has different resources and challenges that
require individualized strategies for implementation. Nonetheless, this report offers a
framework for addressing circuit needs and provides an array of good practices to consider in
developing effective circuit programs.
Methodology of the Study
Our mandate was to conduct a study of “the structure, administration, and management of the
CJA panel attorney system at the appeals court level.” To achieve these goals, the study team
undertook the following examination of all 12 courts of appeals’ practices:
• A review of the court of appeals’ panel plans, relevant local rules and orders, and
materials and forms specific to panel management, such as attorney applications for
panel membership, and “advice-to-counsel” letters;
6
• Within each circuit, telephone interviews (principally conducted between October
2004 and April 2005) with one court of appeals judge, one or more court
administrators, at least one, and often two or three, experienced CJA panel attorneys,
and one federal public defender or community defender;
7
• Correspondence with the 18 respondents to an e-mail letter from the Vera Institute
soliciting information relevant to this study, sent to every chief federal public and
community defender and every CJA panel attorney district representative nationwide;
8
• Conversations with CJA panel attorney district representatives and a small number of
district and magistrate judges during the CJA panel attorney district representatives’
annual conference in February 2005; and
6
Advice-to-counsel letters are provided by the court of appeals to CJA panel attorneys upon their appointment as
counsel. The letters contain specific information about CJA processes, such as the method by which an attorney
may seek to withdraw from representation and the rules guiding compensation.
7
A federal public defender organization is an office of federal employees of the judicial branch and is headed
by a chief federal public defender appointed by the court of appeals for the circuit in which the office is located.
18 U.S.C. §3006A(g)(2)(A). Community defender organizations are nonprofit legal service providers established
and administered by groups authorized by the district CJA plan. 18 U.S.C. §3006A(g)(2)(B). Unlike a federal
public defender, a community defender operates under an independent board of directors and is not employed by
the federal judiciary. As those we interviewed did not distinguish between attorneys at federal public defender
and community defender organizations, we refer henceforth to both as federal defenders, without distinction.
8
In each of the 94 federal districts, one CJA panel attorney is designated as the “district representative” to act as
the point of contact between members of the district’s panel and other components of the judiciary.
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• A collection of data from circuit administrators, where available,and from the Office
of Defender Services, including the number of CJA appellate appointments made
annually, the proportion of those made to new counsel on appeal, and the frequency
and degree of reductions made to circuit CJA panel attorney compensation claims.
9
The study design called for a more extensive review of appellate CJA panel attorney
programs in three circuits, which were chosen for their diversity in size and geography.
Accordingly, in the Second, Tenth, and Eleventh Circuits, we conducted in-person interviews
of additional CJA attorneys and court personnel.
Our interviews focused on identifying good practices for the management and
administration of circuit CJA panel programs. The main criteria for designating a good
practice are: (1) the extent to which it promotes quality representation of the accused; and (2)
the degree to which the practice enhances the efficiency of attorneys, judges, or court
personnel.
9
The circuits vary widely in the range of data that they collect and analyze. A number of circuit administrators
expressed frustration at not having better means for efficiently collecting data about appointment and
compensation practices and the difficulty of comparing their circuit’s practices with others’.
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The Circuit Plans
Each of the 94 federal judicial districts has established a system to appoint publicly-financed
lawyers for those who are charged with crimes but unable to afford an attorney. The CJA,
which provides the statutory framework for those systems, requires each district court to
promulgate a plan for providing representation to defendants who are eligible for government-
funded counsel.
10
Most districts are served by a federal public or community defender
organization, which provides the majority of these services at the district court level. About
40 percent of financially eligible persons are appointed counsel from a “district CJA panel” of
private attorneys, pursuant to the district’s CJA plan.
The CJA further requires the judicial council of the circuit to supplement its district
court plans with provisions for appellate representation.
11
All 12 courts of appeals have
fulfilled this requirement with a written CJA plan. Generally, the CJA plans, along with
relevant local rules, orders, and memoranda from the court of appeals or its clerk of court,
articulate who can be appointed to appellate cases; the scope of an appointed CJA trial
counsel’s duty to continue representation on appeal; an appointed attorney’s obligations
regarding a client’s request to pursue an appeal and U.S. Supreme Court review; and guidance
related to compensation processes for attorneys and other providers of defense services.
Although the Guidelines for the Administration of the Criminal Justice Act and Related
Statutes (CJA Guidelines) contain a model CJA plan for district courts,
12
there is presently
none for courts of appeals. Many of the courts of appeals’ plans expand little on the language
of the Act.
Our study indicates that most court of appeals CJA plans are not regularly reviewed
and updated. Three courts of appeals—those of the First, Second, and Tenth
13
Circuits—have
reexamined and extensively revised their plans within the past four years; several others have
not significantly updated theirs since the 1970s. Often, the plans are supplemented by local
rules and advice-to-counsel letters. In the Ninth Circuit, for example, the CJA plan dates from
1972, but Circuit Rule 4-1, instituted in 1995 and amended in 1999 and 2001, reflects current
policy. In addition, we found that actual practices in many circuits often vary markedly from
published policies, and that the plans state only very broad rules that do not capture important
details about courts of appeals’ practices. This situation may be due to the difficulty—perhaps
10
18 U.S.C. §3006A(a).
11
18 U.S.C. §3006A(a)(3).
12
The Model Plan consists of two parts. The first part, the Model Criminal Justice Act Plan (Model CJA Plan)
sets out who is entitled to appointed counsel, who will provide it (a defender office, panel attorneys, or both), the
duties of appointed counsel, and other matters. The second part, the Model Plan for the Composition,
Administration, and Management of the Panel of Private Attorneys Under the Criminal Justice Act (Model Panel
Plan) details the operation of a panel system. Both plans are published in the Guidelines for the Administration
of the Criminal Justice Act and Related Statutes, Volume 7, Guide to Judiciary Policies and Procedures,
Appendix G.
13
The new Criminal Justice Act plan for the Court of Appeals for the Tenth Circuit became effective January 1,
2006.
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even inadvisability—of “codifying” each aspect of evolving practices, rather than to
inattention.
Although the written plan and related rules may not be a comprehensive source for
discerning a court of appeals’ practice, they can be used to articulate and communicate a
court’s priorities and expectations. A few courts of appeals have used their written directives
to signal the court’s respect for the services of panel attorneys and to announce their intention
to ease one or another burden of CJA practice. The Court of Appeals for the Tenth Circuit, for
example, recently introduced language into its plan that expressly states its policies with
respect to attorney voucher reductions: “Although the Act provides for limited compensation,
the court recognizes that the compensation afforded often does not reflect the true value of the
services rendered. Consequently, it is the court’s policy not to cut or reduce claims which are
reasonable and necessary. If the court determines a claim must be cut it will provide the
attorney notice and an opportunity to cure the defect.”
14
It is evident from speaking with
judges and administrators that the changes in the text are intended to reflect developing
practices and signal a renewed commitment to supporting panel attorneys and their critical
work.
Unless otherwise indicated, the observations in this report are based on the actual
practices reported to us rather than solely on the courts of appeals’ CJA plans. We adopted
this approach because, quite simply, how a court functions is more meaningful than what is
written in the plan. Nevertheless, comprehensive, up-to-date plans can serve an important
purpose. A number of judges and administrators from courts of appeals engaged in revisiting
their practices explained that, of the few ways to learn from the other courts’ efforts and
experiences, the two most helpful are speaking with their counterparts elsewhere and
reviewing the plans of other courts of appeals. An accurate written plan can serve as an
important general resource, both for local practitioners and for others across the country. Most
importantly, up-to-date plans communicate the court’s policies and expectations to CJA panel
attorneys, and enhance the consistency of decisions based on established published
procedures. They positively affect perceptions of the fairness of the CJA panel appointment,
selection, and payment processes, and can improve overall efficiency in management and
administration of the CJA panel attorney program. Regular plan review is also a useful
mechanism for courts to examine and improve their own practices.
14
Criminal Justice Act Plan, United States Court of Appeals for the Tenth Circuit, §VIII(A).
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Continuity of Representation
Traditionally, it was understood that an attorney’s acceptance of an appointment in the trial
court would include appellate representation, absent a conflict of interest that rendered such
representation legally untenable. Most courts of appeals’ CJA plans included provisions
requiring trial counsel to continue on appeal “absent extraordinary circumstances,” or
presented similarly restrictive grounds.
15
Recently, however, some courts of appeals—such as
those for the Seventh and Tenth Circuits—have amended their CJA plans to reflect more
flexible policies toward the continuity of an attorney’s representation from trial through
appeal. There is considerable variation among the courts of appeals in continuity policy and
practice. In the First Circuit, for example, where the court of appeals has for some time
acceded to CJA trial counsel’s requests to withdraw from representation on appeal, new
counsel was appointed in 73 percent of CJA appellate representations in 2001. In other
circuits, however, the great majority of appellate appointments are of attorneys who had
represented the defendant at trial.
A court of appeals’ policy regarding continuity of representation—the extent to which
it is presumed that CJA attorneys appointed at the trial level will continue to represent a
defendant on appeal—presents a critical issue for appeals court CJA practices. The continuity
policy largely determines the extent to which a court of appeals will need to rely on a panel of
appellate attorneys. The need to appoint new CJA counsel on appeal will vary with the degree
to which a presumption of continuity is applied. Moreover, a court of appeals’ decisions
regarding continuity of representation may reflect its sensitivity to the autonomy and
obligations of panel attorneys. The strength of a continuity rule can affect district court
practices and trial attorneys’ willingness to accept district court assignments. A court of
appeals is free to adopt the continuity rule that is most suitable to local practice and the needs
of the court, practitioners, and the clients served. The CJA provides that, “A person for whom
counsel is appointed shall be represented at every stage of the proceedings from his initial
appearance before the United States magistrate judge or the court through appeal, including
ancillary matters appropriate to the proceedings.”
16
The CJA does not require, however, that
CJA trial counsel continue to provide representation at later stages of the proceedings, or even
that they should be presumed to do so.
17
Nor do CJA trial counsel have an ethical obligation
15
Until recently, one circuit had imposed a continuity rule even on retained counsel, generally declining to
appoint appellate CJA counsel to replace retained counsel even after a defendant had exhausted all resources at
the trial level.
16
18 U.S.C. §3006A(c) (emphasis added).
17
The Model CJA Plan for the district courts and the CJA Guidelines take no position with regard to trial
counsel continuing on appeal. The Model CJA Plan, in addressing “Continuing Representation,” does not require
that counsel continue representation through the appeal, but only until new counsel is appointed. “Once counsel
is appointed under the CJA, counsel shall continue the representation until the matter, including appeals or
review by certiorari …, is closed; until substitute counsel has filed a notice of appearance; until an order has
been entered allowing or requiring the person represented to proceed pro se; or until the appointment is
terminated by court order.” Model CJA Plan, §VIII.D. The CJA Guidelines provide, “An order extending
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to continue representation; in some circumstances, in fact, they have an obligation to seek to
withdraw. For example, an attorney who feels he or she is not competent to handle an appeal
must acquire the necessary competence or withdraw from representation.
18
Nonetheless, every
court of appeals presumes continuity of representation from trial through appeal by CJA
counsel, although the strength of the presumption varies significantly. The rationales offered
for the various continuity rules tend to balance efficiency concerns against those of quality.
The tensions between these interests, to be explored in the subsequent sections, are not as
stark as they might seem at first glance.
Promoting Efficiency in Appellate Practice
The principal argument for a strict continuity rule is that it is inefficient to have new counsel,
who has no familiarity with the client, the record, and other circumstances in the trial court,
undertake an appeal. This position is shared by roughly half of the judges we interviewed.
Even those who disagree noted that support for a strong presumption of continuity is based
upon a broadly-held assumption that it takes additional time, and thus costs more in attorney
compensation, for new counsel to become familiar with an extensive record. However, no one
interviewed was able to cite empirical evidence supporting this assumption.
19
More than one
judge based the preference for continuity on a different sort of efficiency concern. They
described their frustration with a newly appointed appellate counsel who answers at oral
argument that, because he or she was not the lawyer at trial, he or she does not know what
happened in the trial court or where in the record to find a factual reference.
20
An opposing efficiency argument (offered mostly, but not exclusively, by CJA
practitioners) supports a relaxed continuity rule. They note that an attorney who handles many
federal appeals—whether an appellate specialist or not—will know how to review a record
more quickly than many trial attorneys and will more efficiently research and prepare the
legal issues to be presented. In addition, those who regularly practice in the court of appeals
Appointment on Appeal (CJA 20) should be executed for each appellant for whom counsel was appointed by a
United States district judge or magistrate judge for representation at the trial level.” Paragraph 2.12.
18
The American Bar Association’s Model Rules of Professional Conduct state: “A lawyer shall provide
competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.” Rule 1.1. Competence. However, a “lawyer may
accept representation where the requisite level of competence can be achieved by reasonable preparation.” Rule
1.1, Comment 4. Nevertheless, the ABA rules have been interpreted to suggest, “A lawyer who does not feel
competent to handle a criminal case, but who is appointed to represent a criminal defendant, should ask the court
to excuse him or her from appointment.” ABA/BNA Lawyers Manual on Professional Conduct, Ethics Opinions
1991-1995, 1001:8101 Opinion 92-F-128(a) (12/11/92). See also Rule 6.2, Accepting Appointments, Appointed
Counsel. Comment 2 (“A lawyer may also seek to decline an appointment if acceptance would be unreasonably
burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.”).
19
An informal study by one circuit’s clerk’s office suggested that compensation requests made by new counsel
were insignificantly greater than those for attorneys continuing on from the district court.
20
It should be noted—as many practitioners did—that this burden of continuity is not imposed equally on others.
Generally, judges do not direct individual federal defenders, prosecutors, or retained attorneys to continue on
appeal. But see footnote 15. Indeed, many federal defender and U.S. Attorney’s offices have separate trial and
appellate divisions, presumably because they find it more efficient or effective, or both.
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may be able to navigate more effectively the particularized rules of appellate practice. On the
other hand, as an experienced appellate practitioner in a federal defender office observed, an
appellate specialist may delve deeper and further develop arguments in ways that take more
time. On balance, and especially in appeals involving complex legal research, practitioners
said they expect greater efficiency from the use of attorneys specializing in, or at least broadly
experienced with, appellate work.
Promoting Quality Appellate (and Trial Court) Representation
Most of the practitioners we interviewed are concerned more with ensuring high-quality
representation than with efficiency, both at trial and on appeal. They are not alone; judges and
administrators also viewed the continuity question through the lens of quality. “There used to
be an argument that it costs less to have trial counsel stay on,” said an administrator who has
worked in more than one circuit. “It’s probably true because they are more familiar with the
case. Today we’re more concerned with quality, however, than saving those nickels.” Some
judges, however, expressed frustration with the notion that a strong continuity rule at times
conflicts with the expectation of quality appellate work. “There’s no reason on the green earth
why a good trial lawyer can’t file a good appellate brief,” noted one judge, although
conceding that good trial lawyers don’t always do so.
Practitioners interviewed for this study strongly support a rule that allows the attorney
to determine in each case whether to continue the representation on appeal or withdraw. This
is because the reasons an attorney may seek to withdraw—such as believing he or she is less
than fully qualified to handle the appeal, feeling unable to afford the time or limited
compensation available, or recognizing a breakdown in the attorney/client relationship after
trial—are difficult, if not inappropriate, to present to the court. Notwithstanding the view that
trial counsel should make the determination of whether to continue on appeal, a significant
number of attorneys stated their belief that, as a general matter, continuity promotes quality
representation. The principal argument for this position is that the best lawyers are expert both
at trial and on appeal; their expertise derives in part from having experience with both. As
noted by one appellate specialist, however, this does not necessarily mean that an appellate
lawyer needs to carry a trial caseload, but rather that an appellate lawyer can benefit from trial
experience and likewise, a trial lawyer from appellate experience. In particular, a trial lawyer
with appellate experience is more likely to anticipate and prepare for appellate issues at trial.
A few practitioners noted that continuity promotes quality by demonstrating to attorneys the
benefits of setting up the appellate issues at trial and the results of their failure to do so; it is a
reminder that the legal burden is theirs alone and cannot be passed on.
Some practitioners consider continuity of representation to be an obligation owed to
the client, viewing it as important that defendants not be shuttled from one lawyer to another
and that they know the relationship is “for the long haul.” One chief federal defender who
organizes her office around this principle—all attorneys continue with the representation of
their clients on appeal, with assistance from a few seasoned appellate practitioners—strongly
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believes that defendants are entitled to no less. “We want the client to feel like he or she has a
lawyer, especially if a good relationship has developed at the trial stage,” she said. In contrast,
other defense attorneys stressed that the client deserves the best lawyer for each stage of the
case.
The principal argument for a flexible withdrawal policy is that having a fresh review
on appeal promotes quality. “If the same counsel who represented at trial represents at appeal,
they may not recognize if they missed something below,” a court of appeals judge noted. “A
fresh look is important.” A defender went further: “Even if it’s more cost-effective to have
trial counsel continue, that’s a reason not to do it. It means that the attorney is not thinking
with a fresh mind.” A smaller number of advocates for a relaxed continuity rule stressed that
appellate practice is a specialty. They contend that framing issues in briefs and arguing to
judges on appeal demand different skills than those required for effective representation at the
trial level, such as framing issues for trial, negotiating plea agreements, examining witnesses,
and arguing to a jury. “Appellate work is a whole different way of thinking from trial work,”
said one practitioner, echoing a fairly common view. While the majority of those we
interviewed said they hope that most panel attorneys are sufficiently expert at both sets of
skills, they doubt this is the case.
21
“When an appellate brief is bad,” said an Assistant U. S.
Attorney who specializes in appeals, “it’s usually [the work of] trial counsel.”
Many practitioners agreed with this assessment. Although they expressed no lack of
confidence in their trial skills, they candidly stated that they do not feel fully competent to
handle appeals and strongly resist being obligated to do so. Others simply expressed the
difficulty, and at times impossibility, of balancing the two types of practice. Not only must
they be masters of both specialties and knowledgeable about two sets of rules, they must be
able to comply with very different, often inflexible, timelines. Trial work can require an
attorney to devote weeks or even months of fully concentrated time, making it very difficult
to meet briefing deadlines in appellate matters. Moreover, many CJA attorneys noted the
apparent lack of sympathy some court of appeals judges show to this dilemma, evidenced by
their denial of requests for extensions of filing deadlines. Similarly, appellate work is most
efficiently performed if the attorney dedicates concentrated time to transcript review,
research, and writing, something that the multiple tasks of trial work make difficult to
achieve.
The small number of district judges we spoke with during this study indicated that
they generally support providing trial attorneys with the ability to withdraw on appeal,
21
A survey of judges conducted for the Administrative Office of the U.S. Courts in 2004 revealed that court of
appeals judges responding to the survey held a markedly less favorable view of panel attorneys’ performance
than did district court or magistrate judges. A representative nationwide sample of 51 appeals court judges
(including 12 chief circuit judges) was selected for the survey. Seventy-five percent of the chief circuit judges
and 51 percent of the full appeals court judges’ sample responded to the survey. Of the circuit judges, 50 percent
rated panel attorney performance as “very good” or “excellent,” as compared to 68 percent of district court
judges and 80.8 percent of the magistrate judges completing the survey. Defender Services Program Surveys:
Survey of Judges, 3.2, 3.3, and 4.3.1 (WESTAT, November 2004).
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principally so that good trial attorneys will not be dissuaded from serving on the district panel.
A few interviewees said that they know of highly qualified trial practitioners who did not join
the district CJA panel, or had ceased accepting CJA appointments because they did not feel
comfortable being required to continue a CJA representation on appeal or did not want to do
it.
There is general agreement that trial attorneys should have considerable leeway to
withdraw at the commencement of the appellate process. Most administrators and half or
more of the judges with whom we spoke also take the position that little is to be gained, and
much may be compromised, by requiring trial counsel to continue. “I think it is fair to say that
the lawyers we drag through appeals kicking and screaming are generally not the ones
providing the most helpful briefs,” noted an administrator involved in reviewing her circuit’s
continuity rule. “In my mind, if we create an avenue for appointing only those lawyers who
want to be doing appeals we will receive a better quality product. I think it will be a win-win
situation for the judges, for the attorneys, and for the clients.”
Approaches to Continuity of Representation
Given the competing rationales for and against applying a strong presumption in favor of
continuity, it is not surprising that practices vary considerably. Several broadly stated
principles have emerged, however. First, the continuity rule should be flexible. It should be
responsive to the dictates of the case, the wishes of the defendant, and the attributes of the
trial attorney, such as expertise in appellate representation, present relationship with the client,
and workload. Second, continuity should be encouraged and supported, but only to the extent
that a trial attorney is able and willing to provide effective representation on appeal. Third, as
a general matter, deference should be given to the position of the attorney as to whether to
continue representation or to withdraw from the case. Finally, the court of appeals, in
conjunction with the district courts, should establish clear procedures for managing requests
by trial counsel to withdraw, including when counsel should move to do so, and how, when,
and by whom new counsel is to be appointed.
Although every court of appeals has some form of presumed continuity of
representation—arguably, it is necessary to assure that there are no gaps in a defendant’s
representation—the trend is clearly away from a strictly applied rule. Roughly half of the
courts of appeals allow trial attorneys to withdraw from CJA appeals with little or no
explanation, whether as a matter of clearly stated policy or as a matter of practice. Some have
relaxed their continuity rules because they believe it is the better practice, acknowledging the
realities of trial and appellate defense work and the sacrifices made by panel attorneys; others
have done so to avoid the burden of “litigating” whether counsel may withdraw. Whatever the
impetus, where the court of appeals had embraced a flexible approach, almost everyone with
whom we spoke expressed satisfaction with it.
Two courts of appeals—for the First and Seventh Circuits—have formally adopted
flexible continuity rules. The Court of Appeals for the District of Columbia Circuit has no
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generally applicable presumption in favor of continuity. Although each of these circuits
approaches continuity in a different way, they all readily permit a change of counsel and
facilitate timely processing of new appointments.
The CJA plan for the Court of Appeals for the Tenth Circuit requires appointed CJA
counsel to continue representation “until relieved by the court of appeals.”
22
However, it also
expressly states that “trial counsel’s request to be relieved from representation on appeal shall
be given due consideration” and “[s]ubstitution of counsel shall not reflect negatively in any
way on the conduct of the lawyer involved.”
23
The justification for these provisions also
appears in the text of the plan: “While the court recognizes there may be benefits to
maintaining continuity of counsel, it also recognizes that the skills necessary to proceed as
appellate counsel may differ from those required for trial counsel.”
24
As these changes had not
yet taken effect at the time of our study, one cannot gauge their practical impact, but we are
told that the new plan signals a significant change in policy for the Court of Appeals for the
Tenth Circuit, which has previously adhered to a stricter presumption of continuity.
Since the mid-1990s, the Court of Appeals for the Seventh Circuit has embraced a
flexible continuity rule. According to its CJA plan, upon docketing an appeal in which the
defendant has had CJA counsel appointed at trial, the trial attorney is asked “to advise the
Court whether he desires to continue such representation throughout the appeal.”
25
If counsel
does not want to continue representation, the court enters an order effecting withdrawal,
followed by a new CJA appointment. We were told that, in adopting this policy, the court of
appeals’ goal was to improve the quality of appellate argument by ensuring that only
attorneys who believed they were qualified to represent clients on appeal were doing so. The
approach also was intended to address breakdowns in client/attorney relationships quickly and
efficiently without having to ask a judge to rule on a motion to withdraw. CJA attorneys we
interviewed expressed concern that requiring trial counsel to state specific reasons for
withdrawing on appeal could compromise the defendant’s interests and possibly violate the
attorney’s duty to protect client confidences. These concerns are frequently cited in the
rationale for a permissive continuity policy.
The Court of Appeals for the District of Columbia Circuit restricts continued CJA
representation on appeal to those attorneys who are members of its appellate panel. The
District of Columbia Circuit is coextensive with the single district within its jurisdiction; most
district CJA panel members are also members of the appellate panel, even though
membership on each panel involves a separate (and rigorous) screening. The circuit’s notice
of appeal form asks CJA trial counsel who are members of the appellate panel to indicate
whether they would like to continue on the case as appellate counsel. Those who are not
members of the appellate panel may submit a motion to continue their appointment on appeal,
22
Criminal Justice Act Plan, United States Court of Appeals for the Tenth Circuit, §I.
23
Id.
24
Id.
25
Criminal Justice Act Plan, Court of Appeals for the Seventh Circuit, January 1, 1996, §IV(3).
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but these requests are granted only after a review by the chief circuit judge’s designee with
input from the federal public defender.
In the Seventh, Tenth and District of Columbia Circuits, the consensus among the
judges and attorneys we interviewed is that these practices, particularly the reliance on the
defense counsel’s preference with respect to continued representation in each case, have
improved—or, in the case of the Tenth Circuit, which recently revised its plan, are expected
to improve—quality and efficiency.
The Court of Appeals for the First Circuit takes the additional step of including
defendants directly in the continuity decision. Although other courts of appeals may consider
a defendant’s wishes, particularly when there is an evident breakdown in the attorney/client
relationship, they have no formal mechanism for soliciting the client’s views. Deference is
given to counsel’s request to withdraw, but it is done in conjunction with eliciting the
defendant’s preferences. Pursuant to its CJA plan,
26
a “Form for the Selection of Counsel on
Appeal” is sent to all defendants represented by CJA counsel in the district court. This form
gives the defendant the option to request that trial counsel continue or that new counsel be
appointed. According to the language of the plan—and, we were told, actual practice—when
the defendant requests new counsel, the request is usually granted.
27
Other appellate
practitioners expressed the concern that such a practice, while good in theory, may unduly
interfere with the attorney-client relationship.
In the course of our interviews we also noted that courts with flexible continuity rules
could nonetheless take steps to encourage continuity. One way might be to accommodate the
various court obligations facing panel attorneys, who are typically solo practitioners with a
mixed practice. It was suggested, for example, that the court might offer more leeway by
extending filing requirements when an attorney cites trial obligations. Also, greater efforts
could be made to provide specialized training in appellate practice and procedure, particularly
for new panel members. It was also suggested that allowing panel attorneys more flexibility in
deciding whether they should continue on appeal facilitates panel attorneys’ own efforts to
improve their practice; those who choose to continue on appeal are likely to be more
motivated to excel.
The timing of any change in representation is another important concern, but practices
vary widely. With some courts of appeals, particularly those that strictly enforce continuity
presumptions, CJA attorneys often seek to withdraw in the district court, at or after sentencing
but before the notice of appeal is filed. This is reportedly because they believe that district
judges—who presumably can identify attorney-client relationships that are foundering and
26
Plan of the Court of Appeals for the First Circuit in Implementation of the Criminal Justice Act, December 16,
2002, Local Rule 46.5(b), (“The [defendant] may ask for appointment of counsel who represented the defendant
in the district court or for the non-appointment of such counsel, but shall not otherwise request any specific
individual.”).
27
Id., Local Rule 46.6(b), Procedure for Withdrawal in Criminal Cases (“If the defendant returns the form and
elects to proceed with new counsel to be appointed on appeal, then the court will ordinarily appoint new counsel
and allow trial counsel to withdraw.”).
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who are perceived to be sensitive to the preferences of district panel members—are more
inclined than appeals court judges to grant such requests. However, this practice raises the
possibility that, if the request is approved before the notice of appeal is filed, the defendant
could be unrepresented at a critical time, that is, when the decision must be made as to
whether to file an appeal or request other post-trial relief. Judges we spoke with expressed
particular concern that the absence of counsel would lead to notices of appeal not being filed
in a timely manner. For this reason, district judges often simultaneously appoint new counsel
when granting a trial counsel’s motion to withdraw. Yet, some interviewees—principally, but
not exclusively, practitioners—expressed the view that district judges may not be in the best
position to make the appointments for appellate cases because they cannot evaluate the quality
of the attorneys’ appellate work. An innovative approach to managing these concerns has
been developed in the Third Circuit: when counsel moves to withdraw in the district court, the
district court instructs its clerk to file the notice of appeal and, upon receipt of the notice, the
court of appeals assigns appellate counsel.
Continuity good practices.
• The circuit rules that govern the appointment, withdrawal, and/or substitution of
counsel for criminal appeals should provide for a flexible approach, rather than
mandating that the CJA counsel appointed at the district level continue to represent the
defendant on and through the appeal.
• Although it is important to recognize the possible benefits of continuity, there should
be significant deference to the position of trial counsel regarding whether, in each
matter, continuity is (1) in the best interests of the client and (2) consistent with
counsel’s professional skills and obligations.
• Courts of appeals should develop mechanisms for addressing motions to withdraw by
CJA trial counsel that are made in the district court at the conclusion of the case. Such
mechanisms must assure that the defendant is continuously represented.
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Administration of the Appellate Panel
Even where there is a strong presumption of continuity of CJA representation on appeal, a
certain number of appellate cases require assignment of new counsel. Discussed in the section
below are the advantages and drawbacks of various methods of assigning representation in
“cold-record appeals”—those that follow the withdrawal of trial counsel or are required when
the defendant first becomes eligible, upon appeal, for CJA representation. Subsequent
sections address the appropriate size of an appellate panel, methods for selecting counsel, the
appointment process, and issues surrounding compensation review.
Utilizing an Appellate Panel
The first issue that arises with regard to panel administration for a court of appeals is whether
to establish a panel of appellate CJA practitioners. Given the inevitable need for qualified
attorneys to handle cold-record appeals, where will the court find the attorneys? And what are
the consequences of its systemic choice? In six of the 12 circuits, there are formal CJA panels
utilizing quality-based selection and review processes.
28
The other courts of appeals select
private attorneys through a variety of means: some appoint attorneys from large private firms;
some appoint district court CJA panel members; and some use lists, often informally
compiled, of local attorneys known to be willing to accept appellate assignments.
A number of courts of appeals rely extensively (but not exclusively) on federal
defender offices—especially those with specialized appellate units—to take cold-record
appeals. Typically, the court calls upon a particular defender organization—sometimes the
organization from the district where the case originated, sometimes the organization from the
district where the appeal is being heard, and sometimes the defender office with the largest
appellate unit in the circuit. For example, over the past few years, of the estimated 250 cold-
record assignments made annually in the Fourth Circuit, approximately one-third were
handled by federal defender offices. A few courts of appeals judges and administrators said
they would assign more cold-record cases to federal defender offices—and even relieve trial
counsel more often—if those offices had the capacity to undertake additional appellate work.
In some circuits, federal defenders stated that they were receptive to taking cold-record
appeals and have the resources to do so, but have not been asked to undertake such
representations.
Judges, court administrators, and panel attorneys commented that the defender offices
within their circuits provide excellent appellate representation and that this representation, on
28
The six are the Courts of Appeals for the First, Second, Seventh, Ninth, Tenth, and District of Columbia
Circuits. These panels are generally circuit-wide, but need not be. In the vast Ninth Circuit, appellate panel
selection and management are left to the individual districts from which the appeals originate.
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average, is of a slightly higher quality than that provided by panel attorneys and often
considerably better than the representation provided by retained counsel.
29
In the Courts of Appeals for four circuits—the Third, Fourth, Fifth, and Seventh—
large private law firms are actively encouraged to accept appellate CJA representations.
Generally, these courts have a strong presumption of continuity (and therefore have relatively
fewer cold-record cases) and no organized appellate CJA panel. Appellate judges in those
circuits consistently report that these firms file high-quality briefs. It is believed that, although
large firms often assign these cases to junior associates as a training opportunity, they
generally provide extensive supervision. Judges point out another benefit: many large firms
do not seek compensation that exceeds the statutory case compensation maximum, even in
extended or complex cases, and occasionally a firm will claim no compensation.
30
Judges and
administrators also appreciate that larger firms rarely decline when the court calls with an
assignment.
31
Most practitioners, on the other hand, emphasized the drawbacks of turning to such
law firms for representation in cold-record appeals. In their view, providing defendants with
attorneys who may have little or no federal appellate criminal experience is inappropriate and
not in the best interests of CJA clients. A number of panel attorneys and defenders pointed out
that large-firm attorneys with primarily civil practices may fail to identify subtle issues in
appellate criminal cases. Court administrators noted that although these firms may submit
lower compensation requests, sometimes their claims are considerably higher than those
submitted by other private attorneys for comparable work because large firms often require
multiple layers of staffing. Finally, some panel attorneys and administrators questioned an
appointment process that either delegates quality assurance to the law firms or leaves it to
chance.
When asked about methods of assigning counsel in cold-record appeal cases, most of
those with whom we spoke—judges, administrators, and practitioners alike—recommended
making appointments from a circuit panel of CJA practitioners. They also endorsed the
reliance on federal defender offices, especially those with specialized appellate units, for
assigning cold-record appeals.
32
Indeed, the vast majority of judges, administrators, and
29
We stress, as did many of those with whom we spoke, that this is a general observation; many individual panel
attorneys are reported to be among the finest appellate practitioners in their jurisdictions.
30
In the Court of Appeals for the District of Columbia Circuit, appointments are occasionally made to firms that
have agreed to accept appellate CJA appointments on a pro bono basis.
31
In part of the Fifth Circuit, several large firms are organized into the Texas Appointment Plan, which is similar
to an appellate panel. Texas circuit judges previously assigned attorneys to cold-record cases on the basis of
letters from attorneys expressing availability for appointment. Over the years, the plan has expanded and has
been formalized through the organizing efforts of a former Fifth Circuit law clerk. Currently, about 150 firms of
20 or more lawyers participate; several individual attorneys were recently added. Although larger firms that wish
to participate in the plan are not required to undergo a review process (the firms are relied on to monitor and
assure quality), individual practitioners are vetted through a review of references and writing samples.
32
These specialized appellate units sometimes consist of no more than one or two attorneys—in one or more
district federal defender offices in the circuit. Among the circuits with appellate units that we identified are: the
First Circuit (Districts of Massachusetts and Puerto Rico); the Second Circuit (Eastern and Southern Districts of
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attorneys expressed the view that there is no substitute for a panel of qualified and willing
appellate practitioners.
33
At the same time, those in circuits that rely predominantly on federal
defender offices are especially pleased with the quality of representation.
The distribution of cases among CJA panel attorneys and federal defender offices
varies from circuit to circuit. Generally, this distribution depends on the staff resources of the
defender office, the volume of cold-record cases, and the size of the appellate CJA panel. The
Court of Appeals for the Tenth Circuit, which has relied extensively on a highly regarded
appellate unit in the federal defender office serving the District of Colorado, recently moved
to institute an appellate panel by including one in its revised CJA plan; however, it will
continue to stress the primary role of the federal defender in accepting cold-record appeals.
(This change comes as the circuit begins to relax its continuity rule and thus expects to make
more cold-record appellate assignments. It also is said to reflect a renewed commitment to
improving the overall quality of appellate practice in the circuit.) The Court of Appeals for the
Seventh Circuit also maximizes its use of federal defender office appellate attorneys.
Administrators there report that the large and well-respected appellate unit in the defender
office serving the Central District of Illinois is often the court’s choice for assigning law-
intensive appeals, such as cases with suppression or post-Apprendi (and, more recently, post-
Booker) sentencing issues.
34
Lengthier, more fact-based appeals are generally referred to
members of the appellate CJA panel. The Court of Appeals for the First Circuit recently
requested and received approval to increase by four the number of federal defender office
appellate specialists in the circuit in order to handle appeals that do not originate in the
defender office.
Many judges and practitioners noted the importance of courts offering training
opportunities for new CJA appellate panel members, and perhaps mandating panel attorney
attendance. The purpose of such training is to assure that reliance on an appellate CJA panel
will advance the quality of representation and that the available pool of possible applicants is
as broad as possible. In the First Circuit, any attorney who wishes to be included on the list of
CJA appellate counsel is required to attend a court-sponsored training. The training is open to
any attorney, whether civil or criminal, prosecution or defense, who wishes to attend.
35
The
program consists of a series of day-long training sessions, offered in three locations so as to
New York); the Fifth Circuit (Southern District of Texas); the Seventh Circuit (Central District of Illinois); and
the Tenth Circuit (District of Colorado).
33
The exceptions, not surprisingly, are judges in circuits without formal appellate panels, most of whom
expressed satisfaction with their methods of assigning counsel. However, it is worth noting that such judges
generally expressed less satisfaction with the quality of practice of non-defender CJA counsel. “We have some
excellent CJA arguments and some that are barely adequate,” noted one judge in a representative observation.
34
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738
(2005), provided the legal bases for raising a wealth of sentencing issues in a great number of federal criminal
appeals.
35
One criminal defense practitioner involved in developing the training said that it has proved to be very
valuable to involve prosecutors (as well as experienced appellate defense attorneys) in designing and presenting
the program, as prosecutors point out issues that the defense attorneys might overlook, such as procedural
defaults, issue preservation, and court rules.
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be accessible to practitioners throughout the circuit, and covers the procedural aspects of First
Circuit practice as well as a number of substantive “hot topics.” The sessions are well-
received by administrators and practitioners alike, and there are plans to offer additional
programs.
36
Appellate panel good practices.
• Appointments should be made from a circuit panel, or multiple panels in very large
circuits, of well-qualified CJA practitioners.
• In conjunction with the circuit CJA panels, courts of appeals should encourage the
establishment of, and reliance on, appellate specialist positions within one or more
defender organization within the circuit.
• Courts of appeals should encourage training opportunities for new members of CJA
appellate panels and consider whether to mandate training as a qualification for
membership on the panel.
Panel Size
Assuming that a court of appeals relies on a CJA panel of appellate attorneys, the next
question that must be addressed is the panel’s size.
37
Those who work in circuits that have
reduced the size of panels that had grown too large over time report that such “pruning” is a
critical step in promoting effective representation.
38
One reason for this is that limiting size
can afford greater selectivity. A smaller pool of attorneys also helps assure that each panel
member receives a sufficient number of assignments to remain current on appellate law and
procedure. However, a court of appeals must also ensure that it has enough qualified attorneys
to meet caseload needs.
39
Finding this balance includes some determination of the optimum
number of assignments that each appellate panel member should receive in a given year.
Many attorneys we interviewed consider one or two assignments every year to be the bare
36
In the study of district court CJA panel attorney programs, District Court Good Practices, “requiring regular
training on basic and advanced areas of federal law and practice” is identified as a good practice. Similarly,
Principle 2 of the Core Principles states: “Provide panel attorneys with necessary resources, including local
training.”
37
The Model Plan for the Composition, Administration and Management of the Panel of Private Attorneys under
the Criminal Justice Act (CJA Model Plan), § I.A.2, developed for use in district courts, states, “The Court shall
fix, periodically, the size of the CJA Panel. The panel shall be large enough to provide a sufficient number of
experienced attorneys to handle the CJA caseload, yet small enough so that panel members will receive an
adequate number of appointments to maintain their proficiency in federal criminal defense work, and thereby
provide a high quality of representation.”
38
The American Bar Association suggests that “the roster of lawyers should be periodically revised to remove
those who have not provided quality representation or who have refused to accept appointments on enough
occasions to evidence lack of interest.” The ABA also suggests that circuit plans contain “specific criteria for
removal” from the panel. ABA Standards for Criminal Justice: Providing Defense Services (3
rd
Ed.), 1992,
Standard 5-2.3(b). Available on-line at: (accessed
October 19, 2005).
39
See CJA Guidelines, 2.01(D); Model Panel Plan, §I(A)(2).
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minimum necessary to ensure that panel members remain current on appellate practice
(assuming they handle few retained federal criminal appeals).
The architects of the recent project to pare the size of the appellate CJA panel in the
First Circuit were reluctant to reduce the number too much; they did not want to exclude well-
qualified attorneys and they expected that many would apply. They worried, moreover, that
limiting the size to the point that each attorney would receive four to six appointments each
year would discourage those with thriving practices who did occasional panel work as a
public service from continuing to do so. If the number of assignments per attorney were
lower, it would also help ensure that members would accept those they are offered, thus
reducing the administrative work associated with appointment of counsel. Because an
unexpectedly large number of highly qualified attorneys applied, panel size was reduced only
slightly; each panel member receives one or two assignments annually.
40
The appellate panel in the Second Circuit was also reconstituted recently; its size was
reduced from 137 to 80 members, which resulted in an annual average of two or three
assignments each. The CJA Attorney Advisory Group—the committee of attorneys
responsible for panel selection and review—created a new selection process for the appellate
panel, designed an application emphasizing appellate experience, and instituted three-year
terms for all panel members. As one member of the committee stated, “It was more important
that we got the right attorneys than that we got the right number.”
There are too many competing factors to achieve a consensus on the optimum number
of members of the panel or to set a target number of annual assignments for each member.
What is clear, however, is that attention to panel size is important.
41
Therefore, good practices
necessitate addressing the factors that influence the appropriate size of the panel. Some
factors relate to the circuit’s needs and policies, such as the number of cold-record appeals
and whether that number may increase if the policy on continuity of counsel on appeal is
relaxed. Other factors focus on resources, such as the number of well-qualified attorneys who
can be attracted and the limits of their motivation and capacity to take CJA assignments.
Courts of appeals must strike and re-strike the balance between these factors as quality and
efficiency concerns require.
Good practices for determining panel size.
• Courts of appeals should periodically adjust appellate panel size by finding the
appropriate balance between attorney skills and appeals court appointment needs
(including the number of cold-record appeals), thereby maximizing quality and
promoting efficiency.
40
The panel was reduced to approximately 170 from 209 attorneys, and a fair number of the 39 removed had not
been accepting assignments.
41
The need to address panel size was also cited in the examination of practices among CJA panel attorney
programs in the district courts. See District Court Good Practices, p. 20; Core Principle 3(E).
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Panel Selection and Review
“We don’t have a real feel for the counsel. We see them only periodically, so there needs to
be a stronger mechanism for making sure that panel members are up to the task.” “It used to
be that nobody knew how people ended up on the panel and everyone had an appointment for
life, or longer.”
These comments by judges come from two different circuits where panel attorneys get
mixed reviews and where few judges said they are satisfied that an adequate effort is being
made to ensure panel quality. Where circuit judges, administrators, and practitioners are most
pleased with the quality of their appellate panel members, the key elements appear to be a
rigorous selection procedure and an ongoing review of the attorneys’ performance and
commitment to providing quality representation.
Although no one took the position that attention to attorney selection and review is
unimportant, not all courts of appeals employ such procedures. Some judges expressed
satisfaction with the quality of the attorneys selected by informal “ad hoc” approaches, such
as maintaining lists of former circuit law clerks and private attorneys who have previously
represented criminal defendants. In at least one circuit, different judges on the court of
appeals use varying methods to select counsel and maintain separate lists. One of the
problems most often cited is that it is difficult to evaluate the relative merits of these less
formal, unpublished approaches. Further, non-transparent processes often result in an
unavailable list rather than a formally established panel. “Not only do we not know how
people get on the list,” one federal defender told us, “we do not know who they are so we
cannot reach out to them for trainings and the like.”
Three conditions were regularly associated with rigorous panel selection and review
procedures: (1) established but flexible criteria for panel membership; (2) a committee
(predominantly composed of criminal defense attorneys) responsible for evaluating attorney
applicant qualifications; and (3) regular review of existing panel members’ qualifications and
performance.
42
Most, if not all, of the circuits with formal appellate panels have established
criteria for membership and some form of selection committee; some also limit the terms of
panel members and review members periodically for renewed appointment.
Practitioners (and some judges) told us that well-defined and published eligibility
criteria make the selection process fairer and more transparent and also set expectations for
attorneys who take CJA assignments. Common complaints where there are no such criteria
are that appointments are based on “cronyism” and that too little attention is paid to the
choice. Yet, it is difficult to identify a discrete set of objective qualities that demonstrate the
requisite knowledge, skills, or dedication of prospective panel members. Few applicants are
said to possess the most revealing criterion—substantial federal criminal appellate experience.
42
Also mentioned as an important consideration was adequate training of new members to assure that promising
candidates with limited federal criminal appellate experience are given an opportunity to serve.
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Most courts of appeals with a panel selection process that uses eligibility criteria rely heavily
on reading writing samples and speaking with references, in addition to considering general
information relating to practical experience. This combination gives reviewers the flexibility
to assess the quality and not simply the quantity of that experience and facilitates the selection
of attorneys who have less experience but who have demonstrated strong potential.
There is no consensus on the best way to identify a practitioner who is well qualified
to handle appeals (or who has the strong potential to do so); most panel selection committee
members rely on “knowing one when they see one.” There is, nonetheless, considerable
agreement about who is in the best position to make the identification. In the circuits from
which we heard—from judges and attorneys alike—selection and review processes that rely
on a selection committee comprised primarily, or exclusively, of respected appellate
practitioners are held in high regard. The important features of such a committee were
described as (1) size (enough members to do the laborious work of thorough review); (2)
geographic diversity (members drawn from various regions within the circuit so that they can
more effectively evaluate the experience of applicants); and (3) judicial support (regardless of
whether court of appeals judges serve on the committee).
To ensure that CJA appellate panel members remain both active and qualified in
criminal appellate practice, a few courts of appeals have instituted term limits for panel
membership, as well as periodic review of members’ qualifications. As one judge observed,
“Term limits ensure that the panel doesn’t become entrenched; a renewal keeps it energetic
and of high quality.” Periodic review also facilitates removal of substandard members by a
method that is less objectionable than an “ad hoc” process. An important component of
periodic review is the routine collection of evaluations about the performance of panel
members from judges and co-counsel. In three circuits—the Third, the Sixth, and the District
of Columbia Circuits—appellate judges have a formal opportunity to comment on panel
attorneys’ performance. These reviews typically include a simple ranking sheet filled out by
one or more of the judges who heard the appeal. In the District of Columbia Circuit, for
example, a certain number of “inadequate” scores triggers a review of the attorney’s tenure on
the panel.
There is broad support among judges and defense attorneys with whom we spoke for
the practice of regularizing the CJA appellate panel selection process by delegating authority
to select and monitor membership to a committee composed of practitioners well respected in
the field of appellate criminal defense and supported by the court. The committee should
apply published but flexible criteria that allow for carefully exercised discretion and should
also conduct periodic, informed reviews of the attorneys’ continued qualification for panel
membership.
43
There are a number of models for such a process. For instance, in the Second
43
These concerns are mirrored in both District Court Good Practices and the Core Principles. The former (at p.
21), identifies as a good practice for district court CJA panel attorney programs the careful selection of attorneys
who serve on the panel and the removal of substandard members. Likewise, Core Principles 3-A, C, and F advise
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Circuit, a 13-member CJA Attorney Advisory Group is chaired by the head of the appeals unit
of the federal defender office serving the Eastern and Southern Districts of New York.
44
All
13 members are criminal defense attorneys who practice in the circuit; although they may be
on a district court panel, none may be a member of the appellate panel—to assure that they
are “above the fray,” as one judge described it.
45
There is an effort to include representatives
from all of the circuit’s districts in order to encourage the broadest participation on the panel
and to provide the widest range of knowledge and views. Advisory Group members, other
than the head of the federal defender appeals unit, serve for no longer than two three-year
terms to encourage independence and diversity. The terms are staggered to promote
continuity.
46
According to one member of the Advisory Group in the Second Circuit, appellate
panel membership is limited to attorneys with “superior experience and proven competence”
in federal appellate criminal defense work. To determine whether an applicant meets those
requirements, the Advisory Group relies heavily on the applicant’s written submissions—
preferably federal appellate briefs—and assessments from co-counsel and opposing counsel,
whom an applicant must list, and references.
47
The Advisory Group’s relatively large size
allows for a thorough review of written submissions. According to an attorney who reviews
applications for the Second Circuit panel, the process of reading briefs and calling references
can be “rigorous and time consuming,” but the result is a panel of the “highest quality.”
48
The panel members they select also serve for staggered three-year terms but may re-
apply for additional terms. The Advisory Group reviews applications for reappointment as
well, using a similar process supplemented with comments from circuit judges. The Advisory
districts to use selection and review committees, conduct a regular review of the CJA plan, establish
qualifications for panel membership, and conduct periodic post-admission review of panel members.
44
The current members of the CJA Attorney Advisory Group were selected by the court of appeals’ CJA and Pro
Bono Committee, made up of three judges and charged with formulating panel selection processes.
45
Amended Plan to Implement the Criminal Justice Act of 1964, United States Court of Appeals for the Second
Circuit, January 29, 2002, §V, p. 3.
46
Under the new CJA Plan for the Court of Appeals for the Tenth Circuit, an eight-member Standing Committee
on the Criminal Justice Act will play a similar role and will be comprised of federal defenders and private
attorneys representing all of the districts in the circuit. The chief judge may also designate a liaison from the
court’s legal staff. CJA Plan , Tenth Circuit, §III. The Attorney Selection Committee for the Court of Appeals
for the District of Columbia Circuit, on the other hand, is comprised of two active court of appeals judges, the
federal defender, one experienced CJA appellate panel member, and one criminal law practitioner who is not a
member of the CJA appellate panel; it meets every two to three months. The CJA Model Plan for the district
courts suggests a Panel Selection Committee consisting of one district judge, a United States magistrate judge,
one attorney who is entering the third year of his or her term as a member of the CJA Panel, and the chief federal
defender, if there is one. CJA Model Plan, § I.B.
47
In contrast, the Court of Appeals for the First Circuit, recognizing that there are many promising candidates
whose practices have been limited to state court, expressly credits state appellate experience. A requirement that
applicants submit a federal appellate brief was dropped.
48
The only complaint we heard is that the process is not used broadly enough; that is, it is not used to evaluate
the attorneys who continue in representation from the trial court, many of whom are not on the appellate panel.
One architect of the selection process said of the continuity rule: “It is in conflict with our creation of an
excellent cadre of appellate specialists. Trial counsel are not vetted for appellate ability.”
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Group makes selection and reappointment recommendations to the three-judge CJA and Pro
Bono Committee, which generally follows its advice. Attorneys who are denied
reappointment are provided with an explanation of the process but generally not with the
specific reasons for the denial.
49
Good practices for panel selection and review.
• The selection of appellate CJA panel members should be overseen by a committee
primarily or entirely composed of criminal defense attorneys, including experienced
appellate practitioners.
• The CJA panel committee should apply a rigorous selection process based on
established but flexible criteria.
• The committee should conduct periodic review of panel members to assure their
continued qualification for, and commitment to, appellate practice. In circuits in which
a rigorous selection process has not been the norm, existing panel members should be
required to reapply or otherwise undergo a quality review.
The Appointment Process
Courts of appeals confront two sets of issues when deciding how to appoint attorneys to cold-
record appeals. These involve (1) balancing the need to apportion cases fairly among
appellate panel members against appointing an appropriately qualified attorney in each case;
and (2) deciding who is in the best position to make appointment decisions.
There is broad consensus among everyone we interviewed that, generally,
appointments should be made on a rotating basis among panel members, but that considerable
efforts should be made to assign cases to appropriately qualified attorneys.
50
Three forms of
attorney-to-case matching were identified: (1) type of case and attorney specialization; (2)
case complexity and attorney skill level; and (3) geographic considerations.
49
The new CJA plan for the Court of Appeals for the Tenth Circuit provides for counsel to be given notice of the
proposed basis for removal and an opportunity to respond in writing. Such responses will be further reviewed by
the Standing Committee. §II.G.
50
The Model Plan for the Composition, Administration and Management of the Panel of Private Attorneys under
the Criminal Justice Act, Appendix G to the CJA Guidelines, Section II.B, developed for use in the district
courts, provides: “Appointments from the list of private attorneys should be made on a rotational basis, subject to
the Court’s discretion to make exceptions due to the nature and complexity of the case, an attorney’s experience,
and geographic considerations. This procedure should result in a balanced distribution of appointments and
compensation among the members of the CJA Panel, and quality representation for each CJA defendant.”
Practitioners we spoke to previously (see District Court Good Practices) about the district court appointment
process generally placed greater emphasis than appellate practitioners interviewed for this study on the need to
assign cases to CJA panel members on a strictly rotating basis. There are several factors that may contribute to
this view. First, there are many more CJA appointments made at the district court level than at the court of
appeals level. Second, at the point when district court appointments are made, less is known about the case. And
finally, district court panel members may tend to rely more on a regular stream of CJA assignments than
attorneys who are appointed at the appellate court level.
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Every court of appeals selects appropriately qualified attorneys for capital appellate
cases, as required by statute,
51
and at least one maintains a separate list of attorneys who have
requested to be assigned only to capital habeas corpus appeals. Beyond these approaches,
administrators who maintain appellate CJA panel lists commonly make note of the case types
preferred by individual panel attorneys. Although some administrators told us they do not
simply take attorneys at their word regarding their qualifications, most courts do not have any
systematic way of identifying attorneys’ specialized qualifications.
When it was reconfiguring its panel, the Court of Appeals for the First Circuit
considered grouping panel attorneys into tiers, organized by skills and preferences. However,
administrators decided that such a system would not only be difficult to implement and
maintain, it might also alienate many panel members.
52
The Court of Appeals for the Sixth
Circuit uses judicial feedback to guide certain appointments. Members of the panel of judges
hearing argument are asked to rate the attorney’s written and oral skills and to include
additional comments. The clerk’s office tracks attorneys’ ratings; attorneys with poor ratings
may receive a letter informing them of the need for improvement or alerting them that they
will no longer receive appointments. Those attorneys who receive consistently high
performance ratings from the judges are appointed to the more complex cases; those whose
ratings are lower than average are assigned to more routine cases.
Many panel administrators also keep a list (or make a mental note) of those attorneys
who excel at, or are less likely to object to, working with difficult clients. A substantial
number of CJA cold-record appeals involve clients who have had difficult relationships with
their attorneys, particularly in circuits with strong presumptions of continuity, where the
complete breakdown of the attorney-client relationship is one of the few bases on which the
court of appeals grants motions to withdraw.
Finally, when assigning attorneys to cold-record cases, a number of courts of appeals
take geographic considerations into account, assigning attorneys based on their proximity to
(1) the court of appeals; (2) the district court where the case originated; or (3) the location of
the defendant. Each approach has the potential to improve efficiency. For example, appointing
an attorney from the original district may facilitate access to the record.
Generally, the administrative duties associated with appointing appellate CJA counsel
are assigned to the clerk of court or another staff person in the circuit’s central office. In a few
instances, however, court personnel make appointments from locations throughout the circuit.
For example, in the Eleventh Circuit a judge from the court of appeals is assigned to each
district (generally the district in which the judge has his or her chambers) and maintains a list
of available attorneys from which CJA appointments are made for appeals from cases from
51
18 U.S.C. §3005; 21 U.S.C. §848(q).
52
In contrast, some state court appellate panel systems—including those of California, Massachusetts, and
Wisconsin—evaluate and certify, or otherwise rank, appellate attorneys according to skill and experience when
admitting them to the panel and periodically thereafter. The purposes are to assure the necessary competency of
appellate attorneys and to aid in the development of less-experienced attorneys.
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the district. In the Ninth Circuit, where some districts have their own separate, rigorously
vetted appellate panels, appointments are similarly decentralized.
In some Ninth Circuit districts, as well as in the District of Columbia Circuit, the
federal defender receives cases that require new counsel from the clerk’s office, accepts a
certain number of appointments for the federal defender organization, and identifies panel
attorneys for the remaining appointments.
53
Similarly, courts of appeals could delegate the
management of the appointment function to an experienced administrator, such as a
supervising attorney.
54
The appointment systems preferred by all with whom we spoke rely principally on a
system of rotation, with some effort to match the case or defendant with an appropriately-
skilled attorney.
55
One approach is to have the federal defender office administer
appointments. Through their specialized defense expertise, federal defenders are able to
identify difficult cases or clients quickly and match them with appropriately-skilled attorneys.
In the District of Columbia Circuit, and in the Ninth Circuit districts where the federal
defender administers the circuit panel, the defenders also participate on the CJA panel
selection committees. Thus, they are in the best position to identify and evaluate the available
attorneys when deviation from the rotation is warranted.
56
In a few state court systems, similar
benefits flow from delegating multiple administrative functions to a defender office or similar
entity. The Wisconsin Public Defender’s Appellate Division, for example, selects and
monitors private attorneys, makes the appointments, provides training and litigation
assistance, and reviews compensation requests. In Colorado, the statewide Office of Alternate
Defense Counsel performs many of the same functions, as do the regional Appellate Projects
in California.
No consensus regarding the use of geographic considerations emerged from our
interviews. One CJA panel attorney commented that it is important to “share the wealth, or
the burden” by assuring that attorneys throughout the circuit are well-represented on the
panel, a view expressed by other interviewees. Broad geographic representation has been
made a priority for the appellate panel in the Second Circuit, and, although members of the
53
Although the CJA vests appointment authority with the court, 18 U.S.C. §3006A(b), other court personnel
facilitate such appointments and manage the administrative component.
54
In District Court Good Practices, p. 27, delegating management responsibility for panel attorney selection,
appointment, and compensation to an independent, professional administrator who understands the defense
function is identified as a good practice on the district court level. Core Principle 3-H urges CJA panel
administrators to “consider use of [an] administrative/supervisory attorney.”
55
The Court of Appeals for the Second Circuit is to some extent an exception. It assigns cases almost
exclusively on a rotating basis. Most administrators and practitioners interviewed in the Second Circuit prefer
this approach, citing reasons of fairness and proportionality. They also expressed the view that, because
attorneys on the panel are almost all very highly qualified, case-matching is unnecessary. See also, Core
Principle 3-G (“Use an appointment process that is fair to attorneys and gives due consideration to matching
attorneys with clients”).
56
There is a contrary view, however, that defender involvement with the administration of the panel presents at
least the appearance of a conflict of interest. This concern led one district to turn to the use of a CJA supervisory
attorney. See District Court Good Practices, p. 18.
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Advisory Group say they are not entirely satisfied with results to date, the group has
encouraged attorneys in districts far from where the court of appeals sits to apply for panel
membership.
Appointment good practices.
• Appellate CJA panel attorneys should be assigned to cases on a rotating basis.
However, the appointment system also should be flexible to allow for appointments
that pair complex cases or challenging defendants with qualified attorneys with the
appropriate skills.
• Courts of appeals should develop a process—such as through appointments
administered by a CJA supervising attorney or a federal defender office that also
oversees selection and review—for evaluating the special skills of attorneys and the
needs of the case and the defendant.
Compensation Processes
There is unanimity about one aspect of panel attorney administration: compensation review is
trying. The courts of appeals expend significant resources reviewing and processing
compensation requests.
57
Although the statutorily authorized maximum hourly attorney
compensation rate,
58
case compensation maximums,
59
and Judicial Conference policies with
respect to voucher review and compensable expenses
60
are applicable nationwide,
compensation practices among the courts of appeals are strikingly inconsistent. Among the 10
circuits for which we have data for fiscal year 2004, the average amount paid per attorney
appellate representation varied by nearly 100 percent; the percentage of the total number of
appellate vouchers that were reduced ranged from 5.5 percent to 58.2 percent (a variation of
more than 1,000 percent); the average reduction ranged from $1,117 to $5,500 (a variation of
nearly 500 percent); and the reductions measured as a percentage of the amount claimed
ranged from 1.6 percent to 30.9 percent (a variation of more than 1,900 percent).
61
A large number of those we interviewed—primarily attorneys but also judges and
administrators—expressed concerns about the efficiency, consistency, and fairness of the
attorney compensation review in the courts of appeals. The efficiency concerns are
57
Included among the compensation-related matters that courts of appeals routinely handle are the
review by the chief judge (or that judge’s delegate) of all appellate court CJA vouchers submitted by
attorneys or other service providers and district court vouchers claiming amounts that exceed the
statutory case compensation maximums. This study examines circuit practices for the review of CJA
panel attorney compensation claims (vouchers) filed for payment for services provided and
reimbursement for expenses incurred. It does not include an examination of the review procedures for
compensation claims submitted by experts or other service providers.
58
18 U.S.C. §3006A(d)(1); CJA Guidelines, 2.22(A)(1).
59
18 U.S.C. §3006A(d)(2); CJA Guidelines, 2.22(B).
60
CJA Guidelines, 2.23 to 2.32.
61
Data compiled and provided by the Office of Defender Services, Administrative Office of the U.S. Courts,
October 2004.
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straightforward: it takes numerous staff—as many as five or six in some average-sized
circuits—and a significant expenditure of judicial time to process compensation requests.
Concerns about consistency focus on the variation in compensation determinations from
circuit to circuit and from judge to judge within a circuit. Concerns about fairness address
whether an attorney has notice of, and an opportunity to respond to, proposed voucher
reductions, the clarity of the local rules guiding compensation decisions, and the timeliness
with which vouchers are processed. Both consistency and fairness concerns affect the
inclination of panel attorneys to accept appellate assignments and, ultimately, on the quality
of panel attorney representation. Underlying these concerns is a common question: Who is in
the best position to evaluate panel attorneys’ compensation requests?
Efficiency. The voucher review process puts significant demands on a court of appeals’
human resources. Generally, the process starts in the clerk’s office with a mathematical and
technical review of all appellate vouchers.
62
A staff member checks the numbers and
identifies non-compensable claims and those lacking proper documentation, such as an
insufficient explanation of the basis for the compensation sought. In some offices, this
individual’s work is reviewed by other staff members. In addition, the CJA requires that
attorney compensation requests that exceed the statutory case maximum be “certified” by the
court in which the representation was rendered and then “approved” (for payment) by either
the chief judge of the court of appeals or the chief judge’s delegate, who must be an active
circuit judge.
63
This process, too, requires significant time and resources. Within this
framework, the role judges play in attorney compensation review varies considerably from
circuit to circuit.
In the First Circuit, the deputy circuit executive has been given authority to authorize
payment for vouchers up to the statutory case maximum. For those above that maximum, the
deputy circuit executive reviews the vouchers and the chief judge’s delegate conducts a final
review and payment authorization. The Courts of Appeals for the Fourth and Eleventh
Circuits have delegated appellate voucher certification functions to members of the clerk’s
and circuit executive’s offices, respectively. In the Fourth Circuit, appellate vouchers that do
62
This practice is endorsed for use by the district courts in the CJA Model Plan, §III.
63
The CJA provides case compensation maximums of $7,000 for most district court representations and
$5,000 for most court of appeals representations. 18 U.S.C. §3006A(d)(2). The Act further provides that
payment in excess of the maximum may be made for “extended or complex representation” when the
court in which the representation was rendered “certifies that the amount of the excess payment is
necessary to provide fair compensation.” Approval of the chief judge of the circuit or the chief judge’s
delegate (who must be an active circuit judge) is also required. 18 U.S.C. §3006A(d)(3). The Judicial
Conference supports expanding the category of persons who may be delegated authority to approve
such excess compensation requests to include “an appropriate non-judicial officer qualified by training
and legal experience,” and allowing the claimant to seek review by the chief judge of any reduction by a
delegate judge or non-judicial officer. JCUS-SEP 03, pp. 20-21.
(accessed October 19, 2005). The judiciary’s
position is contained in its proposed Federal Courts Improvement Act of 2005, forwarded to Congress
on June 2, 2005.
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not exceed the statutory case maximum (currently $5,000 for appeals) are approved for
payment by a senior deputy clerk. In the Eleventh Circuit, the chief judge has delegated to the
circuit executive approval authority for appellate vouchers that do not exceed the statutory
maximum. Where compensation above the statutory maximum has been requested, the circuit
executive conducts a review and prepares a memorandum with recommendations to the chief
judge, or to the active circuit judge designated by the chief judge, for approval.
Most judges and administrators stressed that the judicial role in reviewing
compensation requests should be limited in scope, especially the court of appeals’ “second-
level” review of excess compensation requests (from either trial or appeals court
representations). Several pointed out that the CJA requires court certification and judicial
approval of excess compensation claims—not a second in-depth or a de novo judicial review.
The Third Circuit provides one example of how to streamline the court of appeals’ review of
district court (but not court of appeals) excess compensation vouchers. The chief court of
appeals judge’s delegate, who has instructed district judges to forego including memoranda
explaining their certifications with the vouchers they send to the circuit, limits the scope of his
review to assessing whether the district judge has made a “reasoned determination.”
Similarly, in the Seventh Circuit, the court of appeals applies a “presumption of
appropriateness” to its review of district court excess compensation certifications. In the case
of claims that do not exceed case compensation maximums—that is, requests that are
submitted directly to the court of appeals for appellate representations—judges with whom we
spoke agreed that greater scrutiny at the court of appeals level is appropriate.
Some we spoke with stressed that in the interest of fairness, the reviewing judge
should inquire about certifications that do not seem appropriate, especially those that seem too
low. This is important because reviewing judges can reduce compensation requests that have
been certified, but they generally cannot increase them.
64
Some courts of appeals delegate a significant portion of the review of vouchers for the
reasonableness of the claim to non-judicial staff. Most, however, expend considerable judicial
resources in compensation review; judges from these courts reported that they find their
involvement in the voucher review process to be very burdensome. As one judge recounted,
“I get a voucher a couple of months after I issued the opinion and have no recollection of the
case. I have to go back to the beginning to take a look. It takes a lot of time; this is the bane of
my existence.” Another explained, “One of the big problems I have is that I have a lot to do
and I let a couple of boxes [of excess compensation vouchers] accrue and then I spend five to
six hours at home wading through them. This is what you have to do unless you rubber-stamp
them.”
64
See In re Lawrence J. Gross, Esq., 704 F.2d 670 (2d Cir. 1983).
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Consistency. Judges and administrators who review attorney compensation requests describe
their mandate as a search for reasonableness. For non-capital representations where payment
in excess of the case compensation maximums is sought, the Criminal Justice Act requires
two specific determinations: (1) whether the representation was “extended or complex” and
(2) whether the amount of the excess payment requested was necessary to provide fair
compensation.
65
Judges have considerable latitude to make these determinations in the
exercise of their judicial discretion. As one judge remarked, “The bottom line is I have to
figure out ‘Is this reasonable?’ Reasonable, like beauty, is in the eye of the beholder.” Judges
said that factors they consider in evaluating the reasonableness of the amount claimed include
the complexity and number of issues in a particular case; the length of the record or trial
transcript; the length of the government’s brief; the length of the opinion; and a comparison
with vouchers submitted by co-counsel. Most judges and practitioners recognize that these
factors may be misapplied. For instance, many attorneys interviewed warned that using co-
counsels’ fee requests as a benchmark can be misleading, explaining that it is not unusual for
co-counsel to borrow liberally from the brief of one attorney who has done the great bulk of
the research and thus has expended vastly more time.
A number of lawyers in several circuits said that they believe that attorney
compensation decisions made by their courts of appeals are inconsistent. One former chief
judge explained: “Different judges see the process of compensation differently: some are
parsimonious, others generous, some overly critical, some of us have been out of the practice
a long time and we don’t have an understanding of current market value. I spoke with the
lawyers and they could never count on what they would get.” Panel attorneys also reported
that reductions often appeared to be arbitrary; one used the description “round sums taken off
the top without explanation.”
A perceived lack of consistency in compensation can have a significant negative effect
on the quality of a circuit’s CJA panel. “There is no underestimating the importance of
payment and how it attracts or deters quality attorneys,” explained one CJA panel attorney.
“If the work has been done, there is nothing worse than having the voucher cut. It is insulting.
It says, ‘I do not have respect for your judgment in your area of expertise.’” A number of
judges made a similar point. “Panel quality depends on attorneys feeling they will be treated
fairly,” remarked one, “and compensation issues are part of that.” A memorandum was issued
by the chief judge of one court of appeals cautioning that frequent reductions in compensation
could cause attorneys to leave the CJA panel.
The impact of these reductions is exacerbated by the fact that the hourly compensation
rates for appointed counsel historically have been, and continue to be, low, particularly when
65
18 U.S.C. §3006A(d)(3). See also CJA Guideline 2.22B(3), which provides some refinement of these
standards: “If the legal or factual issues in a case are unusual, thus requiring the expenditure of more time, skill
and effort by the lawyer than would normally be required in an average case, the case is ‘complex.’ If more time
is reasonably required for total processing than the average case, including pre-trial and post-trial hearings, the
case is ‘extended.’” See also CJA Forms 27 and 27A, CJA Guidelines, Appendix A.
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compared to the hourly fee the federal government pays other private attorneys and to the
average hourly fee for retained criminal cases. For non-capital CJA representations (based on
the maximum hourly attorney compensation rate of $90, effective May 1, 2002
66
), it has been
shown that panel attorneys are netting an average pre-tax rate of $26 per billable hour,
compared to $148 netted by attorneys when retained in non-CJA, non-capital criminal cases.
67
A further comparison can be made to the $200 per hour rate paid by the U.S. Department of
Justice to retain private attorneys with five years of experience to represent current or former
federal employees in civil, congressional, or criminal proceedings.
68
Many courts of appeals have taken steps to improve the internal consistency of their
compensation decisions. Those that have delegated review duties to a single decision-
maker—whether a judge or administrator—reported gains in both the efficiency and
consistency of their review processes.
69
“We were surprised by the nature and extent of cuts,”
explained an administrator in the Court of Appeals for the First Circuit. “So we made a big
change both in procedure and result.” That change included delegating the authority to review
compensation requests in all appellate cases to the deputy circuit executive. (An active court
of appeals judge, pursuant to a delegation from the chief judge of the court of appeals,
reviews the deputy circuit executive’s recommendations in excess compensation matters.) The
result has been greater consistency and fewer complaints. In both the Fourth and the Eleventh
Circuits, the circuit executive is a former practitioner who, by serving as the initial decision-
maker on all appellate vouchers, has become very knowledgeable about standard attorney
compensation requests.
Fairness. Although the CJA Guidelines provide that the reviewing judicial officer “may wish
to notify appointed counsel that his or her claim for compensation and/or reimbursement has
been reduced, and to provide an explanation of the reasons for the reduction,”
70
this is done
by very few courts of appeals.
66
A cost-of-living-adjustment raising the non-capital panel attorney hourly rate from $90 to $92 subsequently
was authorized by Congress, effective January 1, 2006.
67
A nationwide survey of CJA panel attorneys in February 2005 revealed that the average hourly overhead cost
per billable hour for the attorneys surveyed was $64. The average hourly rate they charged in retained criminal
cases was $212. Defender Services Program Surveys: Surveys of Criminal Justice Act Panel Attorney District
Representatives and Panel Attorneys, 4.6 (WESTAT, May 25, 2005). The average hourly overhead expenses and
average hourly fees charged in retained, non-capital criminal cases, as reported by the CJA attorneys surveyed,
are less than the comparable hourly overhead expenses of $74 and average hourly fees of $218, effective January
1, 2004, derived from The 2004 Survey of Small Law Firm Economics (Altman Weil, Inc.).
68
As of May 1, 2002, pursuant to 28 C.F.R. §50.16, the rates paid by the Department of Justice increased from
$125 to $200 per hour for an attorney with five years of practice experience; from $100 to $160 for a lawyer
with three to five years of experience; and from $83 to $133 for a lawyer with up to three years of experience.
69
Voucher review duties have been delegated to one individual by several courts of appeals, including those for
the First, Seventh, Ninth, and Eleventh Circuits.
70
CJA Guidelines, 2.22D. Results of recent surveys of magistrate, district, and appeals courts judges and of CJA
panel attorneys showed a marked disparity on the issue of voucher reductions and notice. Of the judges
responding, 82.9 percent said vouchers are reduced in their district or circuit for reasons other than
administrative and mathematical inaccuracies, 70.6 percent said that panel attorneys are notified of the reasons
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Notably, some courts of appeals, such as those for the Ninth and Tenth Circuits, have
committed to a formal or informal process of notifying attorneys of impending reductions and
providing them with the opportunity to justify full compensation or a lesser reduction.
71
For
example, in the Ninth Circuit, when the appellate commissioner
72
determines that reduction of
a given compensation claim is warranted, he sends counsel a letter detailing the amount and
the reasons. Counsel is given 14 days to respond. Attorneys often provide additional
information leading to full payment; in other cases, counsel accede to the proposed
adjustment. Panel attorneys interviewed said they are generally satisfied with the transparency
and opportunity for comment that this system provides. The Tenth Circuit’s revised CJA plan
includes the following requirement: “If the court determines a claim must be cut it will
provide the attorney notice and an opportunity to cure the defect.”
73
The reason commonly articulated by judges and administrators for not providing
notice and an explanation or soliciting feedback from the panel attorneys is that it would delay
the compensation process. They also cite concerns about “litigating” compensation matters.
Several attorneys we spoke with said that the lack of transparency in compensation review
contributes to the impression that the court does not respect them or their work. “There should
be a system for letting us know a cut is coming down the pike,” remarked one attorney, “give
us a chance to respond, show us some consideration. Just an informal call would do.”
To achieve greater fairness—and perhaps consistency—some courts of appeals have
sought to provide detailed and explicit information about the services and expenses
compensable under the Act. This guidance, which should comport with the national policies
prescribed by the Judicial Conference (and published in the CJA Guidelines), is either
included in the court’s rules or, more commonly, in advice-to-counsel letters sent with each
appointment. As one administrator explained, “It is unfair to say a claim is unreasonably
excessive if the rules are not clear in the first place.”
74
“always” or “often,” and 59.3 percent said that panel attorneys are provided with an opportunity for
reconsideration “always” or “often.” In contrast, 33.7 percent of CJA panel attorneys said they had had a
voucher reduced for other than administrative or mathematical inaccuracies within the previous two years. In
contrast to the reports of the judges, more than half of the individual panel attorneys responding reported they
were “rarely or never” informed of the reasons for voucher reductions at the district level (63.3 percent) and at
the circuit level (66 percent). Further, 75 percent of the panel attorney district representatives responding said
they are “rarely or never” given an opportunity for reconsideration of a voucher reduction at the district level,
and 86.3 percent reported the same at the circuit level. Defender Services Program Surveys: Survey of Judges
(WESTAT, November 17, 2004), § 4.5; Defender Services Program Surveys: Survey of Criminal Justice Act
Panel Attorney District Representatives and Panel Attorneys (WESTAT, May 24, 2005), §§4.7.1B, 4.7.2A, and
4.7A.
71
See Core Principle 5 (“Establish a procedure for reconsideration of compensation denials or reductions by the
judge who made the denial or reduction”).
72
See “Delegating review responsibilities to an experienced administrator,” supra, p. 32, for a description of the
role of the appellate commissioner.
73
CJA Plan, Tenth Circuit, §VIII(A).
74
The Court of Appeals for the Tenth Circuit’s Advice to Counsel Letter, sent to CJA counsel at the time of each
appellate appointment, provides detailed guidance on what time and expenses are compensable and the
documentation required. The letter also invites inquiries regarding compensation matters not set out within.
(accessed October 19, 2005).
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Another way in which courts of appeals can bring greater fairness to CJA attorneys is
to make it a priority to process vouchers as expeditiously as possible. The Court of Appeals
for the Eleventh Circuit has a policy of reviewing every voucher submission within 24 hours
of receipt (except when a request is returned for further documentation or explanation). This
practice especially benefits solo practitioners and those from small firms, upon whom the
burden of “fronting” the costs of representation is greatest.
75
Compensation decision-making. Who is best situated to make efficient and accurate decisions
about compensation? Some judges and administrators with whom we spoke believe they are
well qualified to do so, while others said they feel wholly unprepared. Many practitioners—
and some judges and administrators—suggested that judges and court staff may not be in the
best position to determine compensation for defense work because they lack defense
experience or sufficient familiarity with the intricacies and economics of defense practice. “I
don’t feel comfortable passing judgment on when a voucher should be cut,” said one court
administrator, “and given that some of the members of our bench haven’t been in practice for
decades, I don’t see how they can make the assessment.”
Many attorneys expressed the view that those who review compensation requests do
not appreciate the range of challenges faced by panel attorneys—such as client management,
particularly with difficult clients, some of whom have had more than one lawyer already.
“The most common complaint is failure to communicate. Often judges don’t understand the
needs and importance of client management—not just on a personal level, to keep clients
from once again seeking new counsel, but in order to constructively develop issues,” said one
attorney. (This same attorney reported that he had stopped submitting compensation claims
for more than a single client conference after repeatedly having such items struck from his
vouchers.) Several practitioners also expressed concern that judges sometimes use their
compensation review authority in ways that directly affect the level and quality of
representation provided to CJA clients. For example, two attorneys in separate circuits
recounted being told in open court that the arguments they were pursuing should not be
included on their vouchers. Such practices can create conflicts between the lawyer’s advocacy
duty and financial needs.
Delegating review responsibilities to an experienced administrator. There is considerable
agreement among judges and administrators that a single, appropriately qualified
75
CJA counsel report varying turnaround times by their courts of appeals, e.g., 30 days; 30 days up to one year;
and six to nine months. The CJA Guidelines urge a 30-day limit, absent extraordinary circumstances, for judges
to act on compensation requests. CJA Guidelines, 2.21.B. In addition, the Judicial Conference of the United
States has urged judicial councils of the circuits to compile a report listing CJA vouchers that have been under
review by judicial officers for more than 90 days. JCUS MAR-93, pp. 14, 27 (the report of the March 1993
Judicial Conference proceedings is on file with the Office of Defender Services). The Defender Services
Committee had recommended this procedure, in part, to assist in minimizing voucher approval delays by alerting
the circuit chief judges and judicial councils of instances in their circuits where such delays are occurring.
Copies of the quarterly reports are to be provided to the Office of Defender Services.
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administrator should be given significant responsibility for the compensation review
process.
76
Consensus is lacking, however, as to how much responsibility should be delegated
and to whom.
Practitioners expressed the greatest satisfaction with voucher review processes where
significant review responsibility has been delegated to a single, experienced administrator
(rather than to a judge on the panel that heard the case). In the Ninth Circuit, for example, the
appellate commissioner is responsible for certain quasi-judicial functions, including appellate
case budgeting and appellate voucher review.
77
The appellate commissioner reviews and
certifies all appellate court vouchers; certifications for excess compensation are subsequently
sent to the chief judge’s delegate for approval. The review is similar to that conducted by
judges or other court administrators in most circuits: it involves an examination of the briefs,
the opinion, and an “information summary sheet” provided by appellate counsel addressing
the number and complexity of the issues and other information about the representation. The
appellate commissioner is an experienced former appellate practitioner who has established a
rapport with the panel members.
The CJA panel attorneys, defenders, administrators, and judges in the Ninth Circuit
with whom we spoke all look favorably on the use of the appellate commissioner position. As
one judge said, “With the appellate commissioner we’re treating the lawyers fairly and
allowing the judges to do what they should be doing—judging. If anything we have more of a
cap than we did before because we always had errant judges who would give any fee a lawyer
asked for and now we have consistency in what we will compensate.”
78
And one
administrator noted that, among other virtues, such an approach avoided the difficulty judges
may face in carrying out two disparate functions in CJA appeals, ruling on the merits of the
appeal and ruling on compensation requests. “By the time a judge gets to the payment issue,
he may have come to see the legal issues as quite simple because he has resolved them. It can
be difficult to separate that from the question of how time-consuming it might have been to
brief even the losing side of those issues.”
In many respects, the appellate commissioner’s role in voucher review is akin to that
of the CJA supervising attorneys employed in several districts (including two in the Ninth
76
In District Court Good Practices, p. 30, centralizing and regularizing the compensation process is identified as
a good practice.
77
The Ninth Circuit is the only circuit that had regularly employed appellate case budgeting. A provision was
recently added to the CJA Guidelines (paragraph 2.22B.4) encouraging courts to use case budgeting techniques
in CJA representations that appear likely to become or have become extraordinary in terms of potential cost
(ordinarily, where attorney hours are expected to exceed 300 hours or total expenditures are expected to exceed
$30,000 for appointed counsel and services other than counsel). See also CJA Guideline 6.02F, providing for
case budgeting in capital cases.
78
Several courts of appeals—including those for the First, the Fourth, and the Eleventh Circuits—have taken a
similar approach by delegating to the circuit executive or other senior staff member both the responsibility for
reviewing all attorney compensation vouchers and the authority to give final approval to those that do not seek
excess compensation.
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Circuit).
79
The commissioner and the supervising attorneys participate in voucher review and
case budgeting and help secure services other than counsel, such as expert services. While
they know less about the details of specific cases than presiding judges, they generally possess
far more knowledge and information about the time required to perform certain tasks, whether
they are reasonably necessary, the propriety of various claimed expenses, and other practical
aspects of appellate defense representation. They also are far more likely to communicate
with the attorney making the claim. At least one court of appeals—for the Second Circuit—is
considering the use of a supervising attorney (or similar administrative position) to improve
efficiency and consistency and to control costs, particularly those related to case budgeting
and compensation of expenses other than for services of counsel.
80
Good practices for compensation processes.
• In court rules or in advice-to-counsel letters sent with each appointment, courts of
appeals should provide information reflecting pertinent Judicial Conference
Guidelines and the court’s procedure for voucher review.
• A single individual or coordinated team—well-grounded in the practical and legal
challenges of appellate defense practice—should administer the attorney
compensation process. Consideration should be given to the use of a CJA supervising
attorney or a federal defender office in the circuit.
79
In 1997, the Judicial Conference authorized a two-year (later extended to four-year) “supervising attorney pilot
project.” The evaluation of the project found that supervising attorneys (1) brought consistency and fairness to
attorney expense review by centralizing request processing and case budget management; (2) mitigated the
dangers of ex parte communications by acting as intermediaries between counsel and the court; (3) increased
efficiency by freeing judges from work they often did not believe they were best qualified to handle; and (4)
assured high-quality representation by coordinating panel monitoring. See Federal Judicial Center, The CJA
Supervising Attorney: A Possible Tool in Criminal Justice Act Administration, April 2001. See also District
Court Good Practices, p. 17.
80
Given that a relatively small percentage of CJA panel attorney representations consume a disproportionately
high percentage of expenditures in panel attorney cases, the judiciary is giving increased attention to case
budgeting in high-cost cases at the district court level. Thus, the CJA Guidelines now encourage case budgeting
for non-capital representations expected to cost in excess of $30,000 and all federal capital prosecutions and
capital post-conviction representations (CJA Guidelines 2.22B(4) and 6.02F). At its September 2005
proceedings, the Judicial Conference endorsed a recommendation of its Defender Services Committee to
approve a three-year pilot project for up to three circuit positions to be funded from the Defender Services
appropriation to support the case-budgeting process. The pilot is intended to provide additional management and
accountability for the cases most significantly affecting the Defender Services Program.
Another promising approach involves delegating compensation review to a defender office, especially one
already involved in case appointment and attorney selection and review. This is the practice in the District of
Columbia Circuit, where the federal defender office reviews excess compensation district court vouchers and
makes recommendations to the chief judge. It should be noted that some judges and federal defender offices
regard defender involvement in appointment and compensation review as creating at least the appearance of a
conflict of interest, particularly in multiple defendant cases. Those federal defender offices that undertake such
roles do not agree and address such risks by isolating administrative duties from those involving representation
of clients.
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• Courts of appeals should explore limiting the nature and extent of the judicial role in
reviewing compensation requests and streamlining the second-level review of excess
compensation claims for both trial and appeals court representations.
• Attorneys should be notified of proposed voucher reductions and the reasons for them
and should be provided with an opportunity to explain why reconsideration is
appropriate.
• Courts of appeals should make it a priority to process compensation requests as
expeditiously as possible.
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Conclusion
Our interviews with judges, administrators, and attorneys in the circuit courts of appeals
revealed a mutual commitment to high-quality defense representation and to providing it
efficiently. Indeed, most of the good practices identified in this report are rooted in
cooperation among panel attorneys, judges, court administrators, and federal defenders. There
are certainly different approaches across the country to attaining the twin goals of effective
and efficient defense services, the focus of this study initiated by the Administrative Office of
the Courts. Virtually everyone we spoke with, however, expressed the sense that their minds
are not made up and that they would benefit from hearing about approaches taken in other
circuits and the arguments that support them. It is our hope that through their dissemination
and ensuing discussion, the good practices identified in this report will be expanded and
improved upon by those who work within appellate CJA systems so that defense
representation is consistently of the highest quality practically possible.
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Suggestions for Implementing Improvement
The CJA allows each court of appeals to craft its appellate representation processes according
to its specific needs and circumstances. Not surprisingly, practices for selecting, appointing,
and compensating CJA appellate panel attorneys vary widely. This report documents some
notable practices in each of these areas and provides the basis for three specific initiatives to
improve CJA appellate panel attorney programs.
The first is the dissemination of “Core Principles for Criminal Justice Act (CJA)
Appellate Panel Management and Administration,” similar to those endorsed for district
courts by the Committee on Defender Services of the Judicial Conference of the United States
and distributed by the Director of the Administrative Office in May 2004 to the courts, federal
defenders, and CJA panel attorneys. The good practices identified in this report may provide a
basis for establishing these appellate Core Principles.
The second is the recommended development of a Model CJA Plan for the Courts of
Appeals. Judges and administrators in the courts of appeals expressed great interest in making
improvements to the administration and management of their CJA appointment and voucher
review processes at the appellate level. A model CJA plan specifically tailored for appeals
courts could provide a framework for doing so. There is such a plan applicable to the district
courts (see Guidelines for the Administration of the Criminal Justice Act and Related Statutes,
Volume 7, Guide to Judiciary Policies and Procedures, Appendix G). Based on this study, we
recommend development of a Model CJA Plan for the Courts of Appeals, incorporating
“good practices” identified in this report but permitting individual plans to reflect local needs
and practices.
The third is the creation of a repository for reference materials to facilitate
improvements in CJA plans and practices at the appellate level. Housed on web sites available
to the judiciary and to CJA panel attorneys and the public, it would include items such as
newly revised CJA plans and related orders, appellate training curricula, application forms for
panel membership, forms for judicial assessment of CJA panel attorney performance, and
pertinent legal references.