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The District of Columbia’s overseers in the House have begun investigating the city’s programs for providing lawyers for poor defendants, triggering fears among some attorneys that legislators may want to unravel the entire system. For the past month, legislators have been gathering information on the cost of defender services in the city in hopes of finding out whether the federal government is paying too much to ensure that every indigent defendant has a lawyer. One of Congress’ first priorities is to discover how many of the court’s 51,000 criminal cases are handled by court-appointed counsel, who are paid with taxpayer dollars. Court officials estimate that between 80 percent and 90 percent of the criminal defendants in D.C. Superior Court are indigent. Federal lawmakers are also seeking a breakdown of the number of cases handled by the D.C. Public Defender Service (PDS) — which employs salaried lawyers to represent criminal defendants in many of the District’s most serious cases — compared with those represented by private lawyers working for $50 an hour under the Criminal Justice Act. Legislators are also interested in scrutinizing the screening process that the PDS uses to determine whether a defendant is eligible for a court-appointed lawyer. According to defense lawyers, the PDS applies a formula that uses the poverty level for the District, currently $8,350 for a single person, as well as other factors, such as the number of dependents, to evaluate a defendant’s need for court-appointed counsel. The defendant is then placed in one of three categories: eligible, not eligible, or eligible with contribution, meaning the person must pay a portion of his or her representation costs. What is raising suspicions on Capitol Hill is that the PDS’s determination as to who qualifies for a free attorney is based entirely on information provided by the defendant and is rarely confirmed by other sources. “Anyone gets an attorney, regardless of their income,” says one House staffer, who asked not to be named. “There’s no question in my mind, the screening at Superior Court is not as thorough as in the federal court,” says Richard Gilbert, president of the D.C. Association of Criminal Defense Lawyers. Gilbert adds that U.S. District Court judges routinely hold hearings to determine whether the defendant can afford counsel. It is unclear what reforms, if any, Congress may suggest after reviewing the information. One of the fears among defense lawyers is that Congress may use potential problems with screening defendants as an excuse to pare back the CJA program. “I’m concerned because it sounds like [Congress] is questioning how this program is being administered,” says Aleta Clayton, a local criminal defense lawyer and member of an ad hoc panel studying CJA reforms. “The Hill’s focus ought to be on the court’s functions here. “We’ve never had 12 months of funding for 12 months of service,” Clayton adds. The sudden interest in money spent by the D.C. defender programs stems from the local courts’ financial crisis. The court system has been closely watched by federal overseers since overspending its 1998 budget by $4.6 million and using funds earmarked for the CJA program to pay for court operations. Last year, the court halted payments to CJA lawyers in September when claims exceeded the program’s $25 million budget. The PDS, meanwhile, has seen its budget more than double, from $7.7 million in 1997 to $17 million this year, and its staff increase 36 percent, from 142 to 193. Lawmakers aren’t the first to consider reforms for the indigent defense system. Funding problems, the PDS’s expansion, and a declining rate of criminal arrests led to efforts earlier this year by Superior Court judges to overhaul the 650-lawyer CJA program. In February, D.C. Court of Appeals Chief Judge Annice Wagner, chair of the courts’ policy-making body, suggested to appropriation leaders Rep. Ernest Istook Jr. (R-Okla.) and Rep. James Moran (D-Va.) that the PDS take on a larger caseload, according to two Hill staffers. Wagner raised concerns that there was a pattern of overbilling by lawyers getting work under the CJA program, these staffers say. Wagner’s suggestion, in addition to concerns that the CJA program was not being managed properly, these staffers say, caused Congress to launch the inquiry. “The judges down there don’t seem to have a handle on CJA stuff,” says one federal staffer. Wagner did not return a telephone call, nor did she respond to a request for comment that was faxed to her office. PDS Director Cynthia Jones and Ronald Sullivan, general counsel to the PDS, did not return several calls. Samuel Harahan, executive director of the private Council for Court Excellence, points out that D.C. judges are already taking steps to make the court-appointed counsel system work better. Harahan notes that Judge Nan Shuker and Judge Geoffrey Alprin — both members of the Joint Committee on Judicial Administration, the courts’ policy-making body — are trying to pinpoint how much lawyers working under the CJA should be paid. They are attempting to put together a set of guidelines that will spell out how long certain types of cases — from relatively minor misdemeanors to the most serious felonies — should take. There are no such guidelines now. Currently, lawyers working under the CJA program are limited to $1,300 for misdemeanor cases; they can earn up to $2,450 for handling a felony case. That amount could be increased, however, with approval from the chief judge. And some within the court system say that fee requests are too often inflated by lawyers and rubber-stamped by judges. Gilbert, also a member of the court’s ad hoc panel looking to weed out inefficiency in the indigent defense programs, says that the current balance between the PDS and CJA works well. “I would be surprised [if,] once Congress understood the facts and the numbers, it would upset that balance,” he said. But the facts may be hard to come by. For one, the PDS has never made information on its caseload publicly available. After an inquiry by appropriations officials last year, the PDS turned over a one-page “fact sheet” in which it claimed to have handled 10,441 dispositions in 1998. But that figure does not include the number of new cases the organization picked up during the year or those handled by CJA attorneys. Harahan says the local justice system may feel a little uncomfortable being under the federal microscope, but the exercise is worthwhile. “It’s just these kinds of inquiries,” Harahan says, “that can be helpful, if a little painful.”

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