[Congressional Record Volume 143, Number 45 (Wednesday, April 16, 1997)]
[Senate]
[Pages S3288-S3290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DOMENICI:
  S. 598. A bill to amend section 3006A of title 18, United States 
Code, to provide for the public disclosure of court

[[Page S3289]]

appointed attorneys' fees upon approval of such fees by the court; to 
the Committee on the Judiciary.


The Disclosure of Court Appointed Attorneys' Fees and Taxpayer Right to 
                                Know Act

  Mr. DOMENICI. Mr. President, I rise today to introduce the Disclosure 
of Court Appointed Attorneys' Fees and Taxpayer Right to Know Act of 
1997.
  Mr. President, what would you say if I told you that from the 
beginning of fiscal year 1996 through January 1997, $472,841 was paid 
to a lawyer to defend a person accused of a crime so heinous that the 
U.S. attorney in the Northern District of New York is pursuing the 
death penalty? Who paid for this lawyer--the American taxpayer.
  What would you say if I told you that $470,968 was paid to a lawyer 
to defend a person accused of a crime so reprehensible that, there too, 
the U.S. attorney in the Southern District of Florida is also pursuing 
the death penalty? Who paid for this lawyer--the American taxpayer.
  What would you say if I told you that during the same period, for the 
same purpose, $443,683 was paid to another attorney to defend a person 
accused of a crime so villainous that the U.S. attorney in the Northern 
District of New York is pursuing the death penalty. Who paid for this 
lawyer? The American taxpayer.
  Now, Mr. President, what would you say if I told you that some of 
these cases have been ongoing for 3 or more years and that total fees 
in some instances will be more than $1 million in an individual case? 
That's a million dollars to pay criminal lawyers to defend people 
accused of the most vicious types of murders often which are of the 
greatest interest to the communities in which they were committed.
  At minimum, Mr. President, this Senator would say that we are 
spending a great deal of money on criminal defense lawyers and the 
American taxpayer ought to have timely access to the information that 
will tell them who is spending their money, and how it is being spent. 
That is why today I am introducing the Disclosure of Court Appointed 
Attorneys' Fees and Taxpayer Right to Know Act of 1997.
  Under current law, the maximum amount payable for representation 
before the U.S. magistrate or the district court, or both, is limited 
to $3,500 for each lawyer in a case in which one or more felonies are 
charged and $125 per hour per lawyer in death penalty cases. Many 
Senators might ask, if that is so, why are these exorbitant amounts 
being paid in the particular cases you mention? I say to my colleagues 
the reason this happens is because under current law the maximum 
amounts established by statute may be waived whenever the judge 
certifies that the amount of the excess payment is necessary to provide 
``fair compensation'' and the payment is approved by the chief judge on 
the circuit. In addition, whatever is considered fair compensation at 
the $125 per hour per lawyer rate may also be approved at the judge's 
discretion.
  Mr. President, the American taxpayer has a legitimate interest in 
knowing what is being provided as fair compensation to defend 
individuals charged with these dastardly crimes in our Federal court 
system. Especially when certain persons the American taxpayer is paying 
for mock the American justice system. A recent Nightline episode 
reported that one of the people the American taxpayer is shelling out 
their hard-earned money to defend urinated in open court, in front of 
the judge, to demonstrate his feelings about the judge and the American 
judicial system.
  I want to be very clear about what exactly my bill would accomplish. 
The question of whether these enormous fees should be paid for these 
criminal lawyers is not, I repeat, is not a focus of my bill.
  In keeping with my strongly held belief that the American taxpayer 
has a legitimate interest in having timely access to this information, 
my bill simply requires that at the time the court approved the 
payments for these services, that the payments be publicly disclosed. 
Many Senators are probably saying right now that this sounds like a 
very reasonable request, and I think it is, but the problem is that 
oftentimes these payments are not disclosed until long after the trial 
has been completed, and in some cases they may not be disclosed at all 
if the file remains sealed by the judge. How much criminal defense 
lawyers are being paid should not be a secret. There is a way in which 
we can protect the alleged criminal's sixth amendment rights and still 
honor the American taxpayer's right to know. Mr. President, that is 
what my bill does.
  Current law basically leaves the question of when and whether court 
appointed attorneys' fees should be disclosed at the discretion of the 
judge in which the particular case is being tried. My bill would take 
some of that discretion away and require that disclosure occur once the 
payment has been approved.
  My bill continues to protect the defendant's sixth amendment right to 
effective assistance of counsel, the defendant's attorney-client 
privilege, the work-product immunity of defendant's counsel, the safety 
of any witness, and any other interest that justice may require by 
providing notice to defense counsel that this information will be 
released, and allowing defense counsel, or the court on its own, to 
redact any information contained on the payment voucher that might 
compromise any of the aforementioned interests. That means that the 
criminal lawyer can ask the judge to take his big black marker and 
black out any information that might compromise these precious sixth 
amendment rights, or the judge can make this decision on his own. In 
any case, the judge will let the criminal lawyer know that this 
information will be released and the criminal lawyer will have the 
opportunity to request the judge black out any compromising information 
from the payment voucher.
  How would this occur? Under current law, criminal lawyers must fill 
out Criminal Justice Act payment vouchers in order to receive payment 
for services rendered. Mr. President, two payment vouchers are the 
standard vouchers used in the typical felony and death penalty cases 
prosecuted in the Federal district courts. Mr. President, the 
information of these payment vouchers describes in barebones fashion 
the nature of the work performed and the amount that is paid for each 
category of service.
  Mr. President, I ask unanimous consent that these two vouchers be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
  [The vouchers are not reproducible in the Record.]
  Mr. DOMENICI. Mr. President, my bill says that once the judge 
approves these payment vouchers that they be publicly disclosed. That 
means that anyone can walk down to the Federal district court where the 
case is being tried and ask the clerk of the court for copies of the 
relevant CJA payment vouchers. It's that simple. Nothing more. Nothing 
less.
  Before the court releases this information it will provide notice to 
defense counsel that the information will be released, and either the 
criminal lawyer, or the judge on his/her own, may black out any of the 
barebones information on the payment voucher that might compromise the 
alleged criminals' precious sixth amendment rights.
  Mr. President, I believe that my bill is a modest step toward 
assuring that the American taxpayer have timely access to this 
information. In addition to these CJA payment vouchers, criminal 
lawyers must also supply the court with detailed time sheets that 
recount with extreme particularity the nature of work performed. These 
detailed time sheets break down the work performed by the criminal 
lawyer to the minute. They name each and every person that was 
interviewed, each and every phone call that was made, the subjects that 
were discussed, and the days and the times they took place. They go 
into intimate detail about what was done to prepare briefs, conduct 
investigations, and prepare for trial.
  I am not asking that that information be made available for, indeed, 
it might prejudice the way the trial goes to the detriment of the 
defendant. Clearly, if all of this information was subject to public 
disclosure, the alleged criminal's sixth amendment rights might be 
compromised. My bill does not seek to make this sensitive information 
subject to disclosure but continues to leave it to the judge to 
determine if and when it should be released.

[[Page S3290]]

But the barebones must be released. We must know the amounts, and it 
must be made available as the dollars vouchers are paid by the Federal 
district court using taxpayers' moneys which are appropriated to them 
by us.
  In this way, my bill recognizes and preserves the delicate balance 
between the American taxpayers' right to know how their money is being 
spent, and the alleged criminal's right to a fair trial.
  So we need to recognize and preserve the balance between the American 
taxpayers' right to know and how much is being spent on these attorneys 
and the alleged criminal's right to have a fair trial.
  I believe we should take every reasonable step to protect any 
disclosure that might compromise the alleged criminal's sixth amendment 
rights. My bill does this by providing notice to defense counsel of the 
release of the information, and providing the judge with the authority 
to black out any of the barebones information contained on the payment 
voucher if it might compromise any of the aforementioned interests. I 
believe it is reasonable and fair, and I hope I will have my colleagues 
support.
  Mr. President, I ask unanimous consent that the bill be appropriately 
referred.
  The PRESIDING OFFICER. The bill will be appropriately referred to the 
committee.
                                 ______