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Law of Criminal Defense - CA9: CJA counsel's cross-examination at trial did not support the CJA fee request

CA9: CJA counsel's cross-examination at trial did not support the CJA fee request

11/11/09

Permalink 09:01:34 am, by forhall, 833 words, 12372 views   English (US)
Categories: blog

CA9: CJA counsel's cross-examination at trial did not support the CJA fee request

The District Court's 48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation. There was no question as to the veracity of the fee request; it just appeared unnecessary. This is a rare look at an appeal from a denial of CJA fees appealed to the Circuit Court and applying the Guidelines for the Administration of the Criminal Justice Act. In re Smith, 09-80163 (9th Cir. November 10, 2009):

The guidelines also establish what process is due before a claim may be adjusted. If the presiding judge concludes that a reduction in claimed compensation is necessary, that judge should provide appointed counsel with (1) “prior notice of the proposed reduction with a brief statement of the reason(s) for it,” and (2) “an opportunity to address the matter.” Id. at ¶ 2.22(E). Because he anticipated reducing the amount claimed in the attorney’s CJA voucher, Judge Quackenbush notified Mr. Smith in writing of his concerns and ordered that the attorney be given the opportunity to be heard before a final decision was rendered. At that hearing, the judge explained his reservations against approving the full amount sought, and he permitted Mr. Smith to explain and justify his allocation of pre-trial preparation time. Unsatisfied with both Mr. Smith’s response and his unwillingness to consider any reduction in his requested hours—i.e., refusing the court’s suggestion that he limit them only to those hours necessary for fair compensation in view of how the case was handled by counsel—Judge Quackenbush then cut the number of out-of-court hours requested in the second-interim voucher by about 48 percent.

. . .

The procedure set forth by the CJA makes sense, especially in complex cases where interim vouchers are regularly submitted, sometimes on a monthly basis, as the litigation proceeds. Permitting exhaustive appellate review each time there is a reduction ordered in a CJA voucher would spawn multiple collateral appeals with no real gain. The present system judiciously requires two Article III judges to review and certify the amounts reasonably expended as fair compensation for indigent representation under the Act.

For this reason our circuit has very little precedent regarding the CJA compensation system. But our treatment of fee reductions in cases where fees may be challenged on appeal provides some guidance. Broadly speaking, we have said that “[t]he district court has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, we defer to its determination, including its decision regarding the reasonableness of the hours claimed.” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992) (citations omitted). Even though such determinations are generally given substantial deference, “the district court is required to articulate ... the reasons for its findings regarding the propriety of the hours claimed or for any adjustments it makes ... to the ... claimed hours.” Id.

“In making [an] award, the district court must strike a balance between granting sufficient fees to attract qualified counsel ..., and avoiding a windfall to counsel.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (internal citations omitted). Traditionally, “[w]e review the district
court’s calculation of the reasonable hours ... for abuse of discretion.” Id. (citing Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 977-78 (9th Cir. 2008)). The district court is required to explain how it made its fee determination, and while that “explanation need not be elaborate, ... it must be comprehensible.” Id.; see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (stating that the court’s explanation may be “concise,” but must also be “clear”).

. . .

Judge Quackenbush ultimately cut almost half of Mr. Smith’s requested out-of-court hours from the second-interim voucher. This is certainly more than a “haircut.” However, the experienced district judge provided not just lengthy, but also crystal clear, explanations for this deduction in a letter, a six page order, and orally on the record when examining the propriety of the fees sought. The court found that Mr. Smith spent very little time cross-examining witnesses during the one-week trial, and in doing so introduced only two trial exhibits. His opening statement was terse, consuming only ten minutes, and he called no witnesses of his own. The court concluded that Mr. Smith had very little to show for the nearly 700 hours of out-of-court preparation sought in the initial and second interim vouchers. The district judge cited his experience in presiding over hundreds of trials and administering thousands of CJA vouchers, and compared Mr. Smith’s trial performance with that of his co-counsel in the Jensen case and with other counsel in similar cases. Judge Quackenbush found that Mr. Smith’s performance in the courtroom lacked substantiated reliance on his out-of-court preparation.

Deference must be given to the presiding judge who watched the progress of this litigation from the beginning because that judge is most familiar with the attorney’s actual performance. Hensley, 461 U.S. at 437 (“[T]he district court has discretion in determining the amount of a fee award [due to its] superior understanding of the litigation.”); ....

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