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Bar News - October 18, 2013

Cuts Could Deter Some CJA Panel Attorneys


Some New Hampshire criminal lawyers appointed to defend the indigent in federal court may no longer be able to afford to accept such cases now that the budget sequester has forced a reduction in their fees.

On Sept. 1, hourly rates paid to attorneys on the Criminal Justice Act panel were reduced from $125 to $110 for non-capital cases and from $179 to $164 for capital cases. Panel attorneys were also told to expect some payments approved for fiscal year 2013 to be delayed until FY 2014, which began Oct. 1, and that four weeks of reimbursements due this year will be deferred until FY 2015.

The measures, which effect more than 10,000 CJA panel attorneys nationwide, will save more than $50 million and prevent further layoffs and furloughs of full-time federal public defenders, who canít meet the demand for indigent defense without the help of private attorneys: 90 percent of federal criminal defendants canít afford a lawyer; nationally, 40 percent of those cases are assigned to CJA attorneys.

Budget pressures on the NH Federal Public Defender Office have already forced delays and scheduling problems at the US District Court in Concord, said Joseph N. Laplante, chief judge for the District of New Hampshire, in a letter last month to Sen. Kelly Ayotte. Reducing compensation to CJA attorneys has had implications, too, Laplante wrote:

"After years of recruiting some of the most well regarded criminal attorneys in this state to join the CJA Panel, these cuts have the potential of reversing those efforts to the detriment of the constitutional mandate that persons charged with federal crimes are adequately represented."

CJA attorneys have already seen cuts in reimbursement for travel, expert witnesses, and investigators, as well as lower reimbursements for paralegal costs, said NH Bar Association President Jaye Rancourt. The fee reduction will only make it more likely that solo practitioners and small firms will hesitate to accept a case, or withdraw from the CJA panel entirely.

"I think it has already happened, and I would expect it will happen some more," Rancourt said.

Jim Moir, of the two-lawyer Concord firm Moir & Rabinowitz, recently rejoined the CJA panel in New Hampshire, but heís already weighing whether to continue to take new appointments. Panel attorneys are committed to helping uphold the Sixth Amendment, which guarantees the right to legal counsel for people who canít afford it, Moir said. But, even before the $15-per-hour pay cut, reimbursements from the US Treasury fell well short of what it costs to put on a non-appointed case.

"Every time you take a case, you lose money," said Moir, whose compensation in a pending case in the District of New Hampshire will be reduced by the budget cuts. "And when you cut it back like that, certainly, Iím less inclined to accept a federal court-appointed case at this point, because you sign up and you have a certain expectation that youíre going to be reimbursed at a particular rate Ė and they change it."

Judges, lawyers, and court administrators have warned repeatedly in recent months that years of flat funding, compounded by the ongoing federal sequestration, which cut $350 million from the federal judiciary, is a threat to the integrity of the federal courts.

In August, 87 federal judges, including Laplante, signed a letter to congressional leaders, warning that "public safety and the quality of the justice system will be profoundly compromised by any further cuts." Since 2011, the judges noted, staffing for probation and pretrial services is down 10 percent; spending on drug, mental health and sex offender treatment, as well as funding for electronic and GPS monitoring, has been cut by 20 percent; and funding for court security systems and equipment is down 30 percent.

But, the judges and others say, the cuts have been most damaging to the courtís duty to indigent defendants. In July, Michael S. Nachmanoff, federal public defender for the Eastern District of Virginia, told a Senate subcommittee that more than 200 full-time public defenders were laid off this year, while other staff and attorneys were forced to take up to 30 days of furloughs.

Miriam Conrad, head of the Public Defender Office for the districts of Massachusetts, New Hampshire, and Rhode Island, said salaried defenders in the New Hampshire office were ordered to take 14 furlough days in 2013. The office also lost one of its four attorneys to help fill a staffing shortage in Boston, where three public defenders have been assigned to represent Boston Marathon bombing suspect Dzokhar Tsarnaev.

The New Hampshire office also lost one of its two investigators and a secretary, both of whom accepted buyouts earlier this year; those positions will remain vacant. All three districts have cut operating expenses, such as non-case related travel and office supplies and equipment, and have negotiated lower rates for experts.

In an email, Conrad said that, because of those measures, she does not expect to have to lay off additional defenders this fiscal year. However, she added, "we will continue to be short-staffed. This has, and will, result in delays of some trials."

To the extent federal public defenders see any relief this fiscal year, it could come as a result of fewer cases brought by federal prosecutors.

Sequestration cut $1.5 billion from the Department of Justice in fiscal year 2013, although a reallocation of funds spared the agency from layoffs or furloughs. But, with $2.1 billion set to be cut from the DOJís 2014 budget, John Kacavas, the US Attorney in New Hampshire, said furloughs are a "probability."

"We havenít heard anything definitive, but things are not getting better," said Kacavas, whose annual budget has already been reduced from $6 million in 2009, when he took office, to $4.5 million. Heís lost a total of five criminal prosecutors during that period.

"We will make the adjustment, stay later, work harder," he said. "But the fact is, I canít ask 14 prosecutors to do the job of 19."

Kacavas said the sequester could put the publicís safety at risk. Fewer federal law enforcement agents means fewer cases for his office, he said, which could mean more drug dealers, more child pornographers and more violent felons on the streets instead of in federal courtrooms.

"I donít think we know what the impact of these blanket cuts will be yet," he said. "But it wonít be good."

Brian Wallstin is a freelance reporter and Bar News contributor.

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