By Nate Raymond
(Reuters) -As the U.S. government shutdown disrupts paychecks for federal workers across the country, it is exacerbating the financial woes of lawyers who defend the poorest members of society when they are accused of federal crimes.
Some of the private attorneys who work as court-appointed lawyers for indigent federal criminal defendants have stopped taking new cases and have argued that their clients are being denied their right to effective counsel, according to court records and defense lawyers.
About 12,000 private lawyers across the U.S. serve on court-managed panels that provide counsel to defendants who cannot afford to hire an attorney. The program that compensates these lawyers under the Criminal Justice Act ran out of money in early July, and the shutdown – now in its 34th day – has resulted in Congress not authorizing any new funding.
Lawyers who serve on these panels represent about 40% of criminal cases against people who cannot afford attorneys, according to the Administrative Office of the U.S. Courts. The remaining 60% of indigent cases are handled by full-time federal public defenders who work for the court system. Since mid-October, they have been working without pay as well.
Courts are still hearing cases during the shutdown.
The funding gap for the defense lawyers is an example of how the shutdown – which on Tuesday will tie a record for the longest in U.S. history – is hindering wide swaths of federal services. It has also resulted in cuts to economic data collection, delays in air travel and, as of Saturday, an end to federal food aid to low-income Americans.
If the shortfall in funding for court-appointed defense lawyers persists, some courts could struggle to provide representation to indigent criminal defendants as guaranteed by the U.S. Supreme Court in its landmark 1963 ruling Gideon v. Wainwright, defense lawyers say.
The lack of government funding for lawyers, as well as for expert witnesses, interpreters and other service providers paid for using congressionally appropriated funds, has prompted a number of defendants to try to dismiss indictments against them, U.S. District Judge William Shubb in Sacramento, California, wrote in an October 20 ruling rejecting one such request.
Defense attorney Danica Mazenko, whose client in the case was charged with illegally possessing ammunition, argued in a court filing that allowing the prosecution to proceed without compensation for legal counsel “would render Gideon a hollow promise.”
The judge declined to dismiss the charges, saying no court in the modern history of government shutdowns has held that delayed payment to court-appointed lawyers violated their clients’ rights.
A lawyer for a New Mexico man charged with unlawfully possessing 16,300 pills containing fentanyl intended for distribution raised a similar argument, saying the case should be dismissed not only because he was not being paid but also because he could no longer hire and pay a forensic chemist to serve as an expert witness necessary for the defense.
Expert witnesses for indigent defendants are compensated from the same pool of funds used to pay their lawyers.
U.S. District Judge Matthew Garcia declined to toss the case on October 16, calling that option an “extreme” remedy and saying he was “confident that the shutdown will eventually end and the necessary funds will become available.”
However, the judge delayed the trial from November to January, citing the defendant’s inability to pay for the expert witness key to his case.
“Criminal defendants and society are interested in ensuring that the former have effective assistance of counsel and access to a fair trial,” Garcia wrote.
Richelle Anderson, the man’s lawyer, in an interview said it was difficult to understand how Congress could fail to provide enough funding for defense lawyers like herself.
“You can’t have a criminal trial if you don’t have defense attorneys showing up,” she said. “They want to arrest people and they want to prosecute people. The other side of that equation is funding attorneys for those people.”
SOLE PRACTITIONERS AND SMALL FIRMS
About 85% of lawyers who serve on court-appointed panels for the indigent are sole practitioners or work for small firms, according to the administrative office.
Court officials and defense attorneys say they are concerned that more of these lawyers could cease taking on cases if funding remains unstable.
“When you’re a sole practitioner, predictability of income is tremendously important to you and your livelihood,” said Jason Tupman, the federal public defender for North Dakota and South Dakota. “If this is not going to be predictable, they’re going to have to do something else, and they will.”
Private lawyers who sign up for the panels are paid far below prevailing market rates, earning $175 per hour for non-capital work and $223 per hour on death penalty cases after they submit vouchers.
Brian Karth, the district court executive for the U.S. District Court for the Central District of California, said lawyers performing work on panels for the indigent “are expressing that they’re near the end of their ability to provide services without pay.”
In his district, which covers Los Angeles, the pool of private attorneys available to take indigent cases has fallen from the usual 100 to fewer than 20, said Anthony Solis, a defense attorney who serves as that district’s Criminal Justice Act panel representative and acts as a point of contact between panel members and other parts of the judicial branch.
In California’s Southern District, which covers San Diego, the court’s panel of lawyers for poor defendants normally has around 100 attorneys, yet the number taking on new cases now is in the low 70s, said Adam Doyle, a lawyer who acts as the district’s panel representative.
Kelly Margolis Dagger, a Raleigh, North Carolina-based partner at the 45-lawyer firm Ellis & Winters who serves as the panel representative for court-appointed lawyers in the Eastern District of North Carolina, said she had heard from five to 10 lawyers in her district “who’ve expressed concerns about their ability to continue to take cases due to the funding crisis.”
“I personally am going to do my best to continue to accept the appointed cases, but I also cannot blame the many, many sole or small-firm practitioners on my panel who find themselves unable to do that,” Dagger, speaking on her own behalf, said.
(Reporting by Nate Raymond in Boston; Editing by Alexia Garamfalvi, Amy Stevens and Matthew Lewis)
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