The Cardone Committee was created by Chief Justice John Roberts in 2015 to conduct a comprehensive review of the administration of our system of public defense in the federal courts. The committee was led by Judge Kathleen Cardone of the Western District of Texas In November 2017, it delivered its report with a list of recommendations for improving the administration of the public defender system. Since then, the relevant standing committees of the Judicial Conference have been reviewing those recommendations and providing their input. The remaining interim recommendations are still in discussion stages and will be considered in the coming months.
This is a big step toward improving the system that serves over 90 percent of those accused of crimes in federal court.
The Judicial Conference has adopted changes that provide a standard for voucher review to attempt to address the problems identified by the Cardone Committee relating to voucher cutting. It agreed to increase staff and funding for capital cases and for litigation support to assist attorneys with discovery, evaluation of forensic evidence, and investigative and other services. And it took several steps in the area of training for both judges and attorneys in defense best practices, electronic discovery, and the use of experts, investigators and other service providers in defense strategies.
Additionally, the Director of the Administrative Office reported that, in response to another interim recommendation of the Committee, the Defender Services Office (DSO) will be made an independent office within the Administrative Office, reporting at the executive level. DSO will also be included in the AO’s Legislative Council.
Below are the specific recommendations adopted by the Judicial Council at the September 2018 meeting
• Interim Recommendation #8 (as modified)
The Cardone Committee has identified a number of problems relating to voucher cutting. The Judicial Conference should:
a. Adopt the following standard for voucher review—
voucher cuts should be limited to mathematical errors, instances in which work billed was not compensable, was not undertaken or completed, and instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.
b. Provide, in consultation with DSC, comprehensive guidance concerning what constitutes a compensable service under the CJA.
• Interim Recommendation #11
A federal public or community defender should be established in every district which has 200 or more appointments each year. If a district does not have a sufficient number of cases, then a defender office adjacent to the district should be considered for co-designation to provide representation in that district.
• Interim Recommendation #14 (as modified)
Modify the work measurement formulas, or otherwise provide funding, to: reflect the staff needed for defender offices to provide more training for defenders and panel attorneys, and support defender offices in hiring attorneys directly out of law school or in their first years of practice, so that the offices may draw from a more diverse pool of candidates.
• Interim Recommendation #15
Every district should form a committee, or designate a CJA supervisory or administrative attorney or a defender office, to manage the selection, appointment, retention, and removal of panel attorneys. The process must incorporate judicial input into panel administration.
• Interim Recommendation #17
DSO should regularly update and disseminate best practices.
• Interim Recommendation #18
DSO should compile and share best practices for recruiting, interviewing, and hiring staff, as well as the selection of panel members, to assist in creating a diversified workforce.
• Interim Recommendation #19
All districts must develop, regularly review and update, and adhere to a CJA plan as per JCUS policy. Reference should be made to the most recent model plan and best practices. The plan should include:
a. Provision for appointing CJA panel attorneys to a sufficient number of cases
per year so that these attorneys remain proficient in criminal defense work.
b. A training requirement to be appointed to and then remain on the panel.
c. A mentoring program to increase the pool of qualified candidates.
• Interim Recommendation #20
FJC and DSO should provide training for judges and CJA panel attorneys concerning the need for experts, investigators and other service providers.
• Interim Recommendation #21
FJC and DSO should provide increased and more hands-on training for CJA attorneys, defenders, and judges on e-discovery. The training should be mandatory for private attorneys who wish to be appointed to and then remain on a CJA panel.
• Interim Recommendation #22
While judges retain the authority to approve all vouchers, FJC should provide training to them and their administrative staff on defense best practices, electronic discovery needs, and other relevant issues.
• Interim Recommendation #23
Criminal e-Discovery: A Pocket Guide for Judges, which explains how judges can assist in managing e-discovery should be provided to every federal judge.
• Interim Recommendation #25
Circuit courts should encourage the establishment of CHUs where they do not already exist and make Federal Death Penalty Resource Counsel and other resources as well as training opportunities more widely available to attorneys who take these cases.
• Interim Recommendation #28
Modify work measurement formulas to:
a. Dedicate funding — that does not diminish funding otherwise available for
capital representation — to create mentorship programs to increase the number of counsel qualified to provide representation in direct capital and habeas cases.
b. Reflect the considerable resources capital or habeas cases require for federal defender offices without CHUs.
c. Fund CHUs to handle a greater percentage of their jurisdictions’ capital habeas cases.
• Interim Recommendation #29
FJC should provide additional judicial training on:
a. The requirements of § 2254 and § 2255 appeals, the need to generate extra-record information, and the role of experts, investigators, and mitigation specialists.
b. Best practices on the funding of mitigation, investigation, and expert services in death–eligible cases at the earliest possible moment, allowing for the presentation of mitigating information to the Attorney General.
• Interim Recommendation #30
Adequately fund and staff the National Information Technology Operations and Applications Development Branch in order to control and protect defender IT client information, operations, contracts, and management.
• Interim Recommendation #31
Increase staff and funding for the National Litigation Support Team, as well as increased funding for contracts for Coordinating Discovery Attorneys to be made available throughout the United States.
• Interim Recommendation #32
Create new litigation support position(s) in each district or at the circuit level, as needed, to assist panel attorneys with discovery, evaluation of forensic evidence and other aspects of litigation.
• Interim Recommendation #33
Develop a national policy requiring the use of qualified interpreters whenever necessary to ensure defendants’ understanding of the process.
· Interim Recommendation #34
Amend 18 U.S.C. § 4285 to permit courts to order payment of costs in the limited circumstances where the defendant is unable to bear the costs and the court finds that the interests of justice would be served by paying necessary expenses.