Sunday, July 06, 2014

Case o' The Week: "Show Me the Money" not Sanctionable, in Ninth - Tillman and CJA Counsel

Hon. Judge Margaret McKeown

The Ninth has endorsed a radical proposition:

   CJA counsel can ask to get paid for their work.

United States v. Tillman, 2014 WL 2922659 (9th Cir. June 30, 2014), decision available here.

Players: Great decision by Judge McKeown, joined by Judges Wallace and Gould. Appeal and win by N.D. Cal CJA Attorney John R. Grele.

Facts: CJA counsel John Grele was appointed as learned counsel on a capital case in the District of Nevada. Id. at *1. When death was not authorized, Grele remained as counsel. Id. 
  Years into the case, Grele and the presiding DJ exchanged a series of emails regarding delays in CJA payments and the court’s concerns regarding costs. Id. at *1-*2. In an early email, Grele referred to suspending work until payment was received. Id. at *1. At a later hearing, Grele assured the court “[i]f I get paid in a timely fashion, I can represent [that] I can provide effective assistance of counsel.” Id. at *3. 
  After the hearing, the court issued an order with factual findings, accusing Grele of “attempting to extort the court by delay or withdrawal of representation,” and of “violating his ethical obligations of representation to a client.” Id. The district court referred a copy of the order to the California Bar Association, and new counsel was appointed for Mr. Tillman. Id. at *3. 
  (The California State Bar dismissed the court’s referral at the investigatory stage.). Id.

Issue(s): “This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant’s right to have counsel appointed, counsel’s reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing vouchers for payment.” Id. at *1. “Grele challenges the district court’s order as an improper sanction and requests that we exercise mandamus jurisdiction to vacate the order . . . . We construe Grele’s portion of the appeal as a petition for a writ of mandamus.” Id. at *4.

Held: “We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.” Id. at *1. “We exercise our mandamus jurisdiction, grant the petition, and vacate the order.” Id. at *4.

Of Note: In a thoughtful opinion, Judge McKeown recognizes the blunt financial realities that face CJA counsel: bills must be paid. “To be sure, the judiciary and the lawyers have an obligation to be stewards of CJA funds. But this oversight should not trade off with the rights of clients. Nor should such supervision ignore the practical reality that inordinate delays in processing CJA vouchers stretch lawyers to their economic limits.” Id. at *6. In the present case, “[a]fter Grele spent years as Tillman’s counsel, the district court improperly removed him for highlighting a problem with voucher payments, which the district court admitted were untimely, and the court did so without giving Grele any notice or opportunity to be heard.” Id. at *6. 
  Judge McKeown also acknowledges the real tension between funding limitations and recruiting CJA counsel – Grele’s criticisms “echoed” decades of critiques on this very real problem. Id. at *7.  
   Tillman is a welcome endorsement of the need for independent (and timely-paid) CJA counsel: a must read for all appointed CJA folks (including Federal Defender staff, sandwiched between furloughs in our recent past, and the Work Measurement Study in our near future . . . .)

How to Use: To its credit, the D. Nev. USAO took no position on Grele’s appeal in Tillman. Id. at *4 n.1. The government correctly recognized the “importance that appointed defense attorneys operate independently of the prosecution,” and that “federal law and administrative policy has long precluded participation by the U.S. Attorney’s Offices in CJA-related matters.” Id. 
  Footnote One is a good resource to share with AUSAs too eager to wade into CJA appointment issues – issues that are properly the unique concern of the Court and counsel.
For Further Reading: Tillman is not the only contribution of the District of Nevada to the issue of CJA payments. The Administrative Office has adopted the Nevada e-voucher system for CJA payments. 
  For an interesting article from the U.S. Courts on the Nevada eVoucher System, see article here.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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