Zazi Lawyers Apply for Federal Funding of Defense Expenses

By Jeralyn, Section Terror Trials
Posted on Thu Oct 08, 2009 at 01:52:25 PM EST
Tags: Najibullah Zazi (all tags)

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According to reporter Cara DeGette, Michael Dowling, co-counsel for terror suspect Najibullah Zazi, has applied to the Court to have the federal government pick up the cost of expenses related with the case.

The legal team has applied for federal funding to defray what will likely be a costly defense he said.

I'm not surprised. As I wrote here,

Aside from legal fees, ....who will help Folsom pay the cost of experts needed to assist the defense? Handwriting computer, fingerprint, explosive and terrorism experts will be required, at a minimum. Most lawyers would also use a jury selection expert. Zazi's father has the public defender, so his family isn't footing the bill.

[More...]

Under Section 3.01 of the the Criminal Justice Act Manual, a privately retained lawyer can apply to the court to have the government pay for expert services and other expenses incurred with representation, if their client can't afford them.

Investigative, expert or other services necessary to adequate representation, as authorized by subsection (e) of the Act, shall be available to persons who are eligible under the Act, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services. In this connection, a person with retained counsel is financially unable to obtain the necessary services if his resources are in excess of the amount needed to provide him and his dependents with the necessities of life, provide defendant's release on bond, and pay a reasonable fee to his retained counsel, but are insufficient to pay for the necessary services. In responding to requests for subsection (e) services by a defendant represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the defendant.

If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant's trial expenses, the court may order the attorney to pay out of such fees all or such part of the costs and expenses as the court may direct. The procedure outlined in paragraph 2.05 shall apply to such persons who are financially able to pay some, but unable to pay all, the costs of necessary services.

Requests for CJA funds are ex parte, and not available to the public, at least until the case is over.

Ex parte applications for services other than counsel under subsection (e) shall be heard in camera, and shall not be revealed without the consent of the defendant. The application shall be placed under seal until the final disposition of the case in the trial court, subject to further order of the court.

Maintaining the secrecy of the application prevents the possibility that an open hearing may cause a defendant to reveal his or her defense.

Can the legal team also apply for their fees to be paid? Can more than one lawyer be appointed? From the New York CJA Plan:

4. In an extremely difficult case, where the Court finds it in the interest of justice and so states, a district judge may appoint two attorneys to represent one defendant, and each attorney shall be paid for his or her services, not to exceed as to each, the limits provided in ¶ IX herein.

D. APPOINTMENTS IN SPECIAL CIRCUMSTANCES Whenever a judge makes a written finding, in a proceeding in which counsel must be assigned pursuant to this Plan, that there is good cause shown which renders it in the interests of justice that counsel who is not employed by the FDNY or a member of the CJA Panel be assigned, the district judge or magistrate judge may appoint that counsel with the consent of the person to be so represented and the approval of the Chief Judge of the District. Such appointment shall constitute a temporary appointment to the CJA Panel for the purpose of that proceeding only. If the magistrate judge makes such an appointment and the case is transferred to a district judge, the district judge will review the matter and either confirm the appointment or assign a new attorney from the CJA Panel.

E. SUBSTITUTION OF COUNSEL A district judge or magistrate judge may, in the interest of justice, substitute one appointed counsel for another. Such a substitution should not be made when it would unreasonably impinge upon a person's interest in continuity of representation.

Would the court consider the added expense of having lawyers from Colorado travel back and forth to New York to attend court and meet with their client and insist that New York counsel be appointed? Or would that unduly interfere with Zazi's interest in continuity of counsel?

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Zazi Lawyers Apply for Federal Funding of Defense Expenses | 8 comments (8 topical)

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So is the point of this story (none / 0) (#1)
by SOS on Thu Oct 08, 2009 at 03:35:44 PM EST

that some attorneys give good attorneys a bad name?

I'm getting the feeling Dowling isn't exactly a popular role model amongst his peers.

: not at all (none / 0) (#5)
by Jeralyn on Thu Oct 08, 2009 at 07:08:25 PM EST

There is nothing inappropriate in what his lawyer is requesting and it doesn't reflect poorly on him.
The Sixth Amendment guarantees counsel of choice (with some limits.) The Magistrate Judge in Denver offered Zazi appointed counsel but he chose to stay with Folsom. Folsom then brought in Dowling who has some federal experience.
What's a bit unusual (but allowed) is that Zazi, who is indigent, is now in New York, and instead of getting New York counsel randomly appointed under the Criminal Justice Act, from a panel of approved NY lawyers, he's keeping his retained counsel from Colorado, but seeking expenses be paid by the Government. It remains to be seen whether his lawyers also seek to have their fees paid, switching their status from retained to appointed. That too is possible, but unusual, as neither of them are CJA panel lawyers in New York. (Dowling is on the CJA panel list in Colorado. )

I've never heard of travel expenses (none / 0) (#2)
by Peter G on Thu Oct 08, 2009 at 05:16:57 PM EST

except perhaps to conduct witness interviews and other investigation, being covered by 18 U.S.C. sec. 3006A(e). The statute refers to "investigative, expert, or other services necessary for adequate representation," not to "expenses" of the defense generally. I doubt very much that the Manual you linked, which is kind of the Bible on this issue, would be read to suggest otherwise.

"adequate representation" (none / 0) (#3)
by Fabian on Thu Oct 08, 2009 at 06:53:19 PM EST

Probably is more interpreted to mean some minimum level of representation, not an ideal level of representation.

Where does this money come from? Budgets are tight and the money will come out of someone's budget.


: The money is paid through the (none / 0) (#6)
by Jeralyn on Thu Oct 08, 2009 at 07:13:25 PM EST

Administrative Office of the United States Courts. Congress sets the pay scale. Among the AO's responsibilities:

The AO guides and supports the growing federal public defender program, which includes more than 55 federal public defender organizations and 15 community defender organizations, serving over 80 districts. The AO also oversees the expenditure of funds appropriated by Congress for the program; administers the federal defender and appointed counsel program; and provides policy, legal, management, and financial advice to judicial officers and employees, private attorneys, and federal defenders and their staffs.

I'm talking about if they make the request (none / 0) (#4)
by Jeralyn on Thu Oct 08, 2009 at 06:59:11 PM EST

to have the court appoint them as counsel (after or in addition to seeking expenses for experts.) Travel costs are absolutely allowed for appointed counsel, there's even an instruction for how to compute them on the back of the CJA 20 form.

Two different issues: One is the application for expert services (CJA 21) and the other is the application for counsel fees (CJA 20.)


You're absolutely right (none / 0) (#7)
by Peter G on Thu Oct 08, 2009 at 07:34:00 PM EST

I misread the original post re: travel. My fault, not yours. Not so sure that a federal judge or magistrate in NYC would agree to appoint an indigent defendant's chosen out of town counsel who has only been in the case a few weeks, and whom the defendant never had any realistic plan or ability to pay a reasonable fee. (Very different when the defendant has paid private counsel a fair fee for the reasonably anticipated extent of the case, but the case unexpectedly drags on, or going into interlocutory appeals, or some such.) Otherwise, the appointing judge is likely to smell a scam to circumvent the rule that if you apply for court-appointed counsel you are not entitled to select your choice of attorney.


: that's exactly what I'm wondering (none / 0) (#8)
by Jeralyn on Thu Oct 08, 2009 at 07:42:25 PM EST

...Whether the judge will tell Zazi he can have appointed counsel, but they have to be from the NY list? I agree with what you write, that's usually how it works, but....on the other hand, the "continuity of counsel" argument is a little bit different than "counsel of choice" and since the Government chose to charge him first in Colorado where he obtained counsel with whom he bonded (Folsom) and who, having spent 23 hours at the FBI with him during questioning, is the most familiar with his side of the story, I think there could be some grounds for allowing him to keep his chosen counsel. The NY CJA plan even allows for pro hac vice counsel to apply to be appointed -- so is this one of those "rare circumstances?"