As the U.S. government shutdown disrupts federal employee paychecks across the country, it also exacerbates the financial hardship of attorneys who represent the poorest members of society when they are accused of federal crimes.

Some private attorneys who serve as court-appointed attorneys for indigent federal criminal defendants have stopped taking new cases, arguing that their clients are being denied the right to effective counsel, according to court records and defense attorneys.

About 12,000 private attorneys across the U.S. serve on court-run panels that provide counsel to defendants who cannot afford counsel. The compensation program for these attorneys under the Criminal Justice Act ran out of funds in early July, and the government shutdown—now in its 34th day—has prevented Congress from approving new funding.

According to the Administrative Office of the U.S. Courts, attorneys serving on these panels represent about 40% of criminal cases involving people who cannot afford counsel. The remaining 60% of indigent cases are handled by full-time federal public defenders working for the justice system. Since mid-October, they have also been working without pay.

Courts are still handling cases during the government shutdown. The funding gap for defense attorneys is an example of how the government shutdown—which on Tuesday will equal the longest shutdown in U.S. history—is hampering most federal services. It has also resulted in cuts to economic data collection, air travel delays, and, starting Saturday, a halt to federal food assistance for low-income Americans.

If the funding shortage for court-appointed defense attorneys continues, some courts could struggle to provide representation for indigent criminal defendants as guaranteed by the U.S. Supreme Court in its landmark 1963 decision, Gideon v. Wainwright, defense attorneys say.

The lack of government funding for attorneys, as well as for expert witnesses, translators, and other service providers paid using Congressionally appropriated funds, has prompted some defendants to seek to have their charges dismissed, U.S. District Judge William Shubb in Sacramento, California, wrote in an October 20 ruling, opening a new tab, denying one of those requests.

Defense attorney Danica Mazenko, whose client in the case is charged with illegal possession of ammunition, argued in a court filing that allowing the prosecution to proceed without compensation for counsel "would render Gideon an empty promise."

The judge refused to dismiss the charges, saying no court in the modern history of government shutdowns had held that late payment to court-appointed attorneys violated their clients' rights.

A lawyer for a New Mexico man charged with illegally possessing 16,300 fentanyl pills for distribution made a similar argument, saying the case should be dismissed not only because he was not paid but also because he could no longer hire and pay a forensic chemist to serve as an expert witness needed for the defense.

Expert witnesses for indigent defendants are compensated from the same funds used to pay their attorneys. U.S. District Judge Matthew Garcia refused to dismiss the case on October 16, calling the option an "extreme" solution and saying he was "confident that the shutdown will eventually end and the necessary funds will be available."

However, the judge postponed the trial from November to January, citing the defendant's inability to pay an expert witness who was key to his case. "Criminal defendants and the public have an interest in ensuring they have effective legal representation and access to a fair trial," Garcia wrote.

Richelle Anderson, the man's attorney, said in an interview that it was difficult to understand how Congress could fail to provide adequate funding for defense attorneys like him.

"You can't have a criminal trial if there's no defense attorney," she said. "They want to arrest people and they want to prosecute people. The other side of that equation is funding the lawyers for those people." (alg)

Source: Reuters