Aid Runs Out for Federal Defendants

With more than three months to go in the fiscal year, the federal court system has run out of money to pay defense lawyers, investigators and expert witnesses who have been appointed to aid criminal defendants.

Thousands of lawyers appointed to represent clients too poor to pay for their own defense have been told in recent weeks that the government does not have the money to cover their bills.

Similarly, court-approved investigators, psychologists, pathologists and other experts hired by defense teams will go unpaid, probably until October.

“We had to tell them that they would not be paid for anything submitted after June 17,” said David Sellers, a spokesman for the Administrative Office of the U.S. Courts. As many as 40,000 lawyers and defense experts could be affected by the shortfall, he said.

Lawyers in several cities are threatening to quit in the midst of major trials or to appeal to higher courts, seeking a ruling that the lack of timely payments makes such trials fundamentally unfair.

Officials said they badly underestimated the amount of money needed to pay for court-appointed defense lawyers this year, and Congress in June failed to act on a request for an emergency $25-million appropriation.

“We have found that the expenses for these cases were running about 20% higher than we expected,” Sellers said. He noted that while the agency cannot pay all of its bills now, the attorneys, investigators and others will be paid eventually.

When the new fiscal year begins Oct. 1, the Administrative Office will get a fresh infusion of money.

Last month, Rep. Neal Smith (D-Iowa) sought to attach an emergency funding measure to the special appropriation aimed at helping Los Angeles recover from the riots. But the extra money for the lawyers ran into wide opposition in the House and Senate and was dropped from the bill.

Gaining a midyear appropriation is always difficult, congressional aides noted, and aid for lawyers was not seen as a high priority.

In a letter posted at federal courthouses around the nation, L. Ralph Mecham, director of the Administrative Office, said: “We apologize for any hardship the suspension of payments has on court-appointed attorneys and those who provide investigative, expert and other services under the Criminal Justice Act.”

But a leading defense lawyer said the funding interruption goes beyond hardship for attorneys.

“This tilts the whole system even more toward the prosecution,” said David Lewis, a New York attorney and an official of the National Assn. of Criminal Defense Lawyers. “The prosecutors are being paid. The FBI people are being paid. And so are DEA investigators. But the defense lawyer isn’t being paid, and he can’t retain an investigator or a pathologist or accountant to help out in a complex case.”

Major trials already have been delayed in Missouri, Colorado and New Mexico because of the sudden loss of funding, officials said.

In St. Louis, six defense lawyers appointed to represent 11 defendants in a major drug and racketeering case refused to proceed with a trial set to begin July 7. The government said it could not pay them for five months of work leading up to the trial, or for work over the next three months.

Instead, the defense lawyers asked for a delay in the trial from the U.S. 8th Circuit Court of Appeals. Lawrence Fleming, a St. Louis lawyer, told the appeals court that the six attorneys worked for small firms and could not afford to work for months without pay.

Defense lawyers were especially irate when they learned that the government had spent $750,000 for several confidential witnesses.

Last week, the appeals court ordered a delay in the trial while a judge gathers more information on how the lack of money may hamper the defense team.

Investigators and defense teams have been stunned in recent weeks to learn that they cannot be reimbursed for thousands of dollars in expenses, in addition to their fees.

Ken Wagner, a private investigator in Fresno, had been hired by a court-appointed lawyer to gather information in the Southwest and in Mexico on a pending drug case. He submitted bills for $6,900 for work done in December and January, expecting that it would be months before the court system processed the request and sent out a check. But the bill did not reach the U.S. court system for payment until the day payments stopped.

The funding shortfall does not affect federal public defenders, who are paid a salary. But many smaller jurisdictions do not have public defenders and rely instead on attorneys appointed by a judge. In addition, private attorneys are usually appointed in cases involving multiple defendants because one public defender cannot fairly represent several clients whose interests may conflict.