Court Experts Strained by US Funding Lapse Caused by Shutdown

Criminal case specialists who aid judiciary-funded defense lawyers are cutting costs and refusing assignments after four months of working without pay, prompting lawyers to request case delays.

A dozen of these third-party experts told Bloomberg Law they’re feeling the squeeze following the expiration of Criminal Justice Act panel funding, which provides private lawyers to represent low-income defendants when public defenders can’t.

Affected experts include mitigation specialists who help advocate for lower sentences, computer forensic experts who analyze cellphone and computer data at trial, and interpreters. They have fronted their own expenses since July, or longer, sometimes racking up costs totaling tens of thousands of dollars.

The impact has begun to reach cases, including resource-intensive death penalty cases and crowded immigration dockets in the southwest, providers said. It’s also left many providers financially strapped.

“If you throw a wrench in one part of the machine, the whole machine breaks down,” said San Diego-based private investigator Alan Stevens, who’s part of a team that requested delaying a close-to-sentencing major criminal case in Alaska until CJA funding is restored for their travel.

The lapse has already stretched nearly four months, affecting defense lawyers and the experts and contractors needed to support their clients’ defense. The government shutdown has only made matters worse.

“The lack of funding in this shutdown has really exposed how fragile the CJA infrastructure really is,” said Raquel Rodriguez, who owns an El Paso-based firm providing paralegal and litigation support in federal criminal cases.

Lawyers have requested relief in courts nationwide, arguing the imbalance in resources between defense counsel and the prosecutors violates the constitutional right to counsel.

At least one such request has succeeded since the shutdown. A federal judge in New Mexico agreed to pause a death penalty case this month because of the lack of defense funding, saying he “cannot ignore the massive impact that the federal shutdown has had on Defendant’s right to counsel.”

Resource-Heavy Work

Court officials have attributed the budget shortfall for the CJA panel to underfunding by Congress. They said they initially expected to reimburse these individuals in October. However, the ongoing government shutdown has delayed that relief indefinitely.

Third-party experts say the forensic and mitigation work they’re shouldering can be resource and time-intensive.

Forensic computer experts must identify relevant information within increasing volumes of data from computers and cellphones and present it in a “human, readable, intelligible format,” said Thomas Pullen, a Florida-based certified computer and mobile forensic examiner.

Mitigation specialists may provide in-depth research into clients’ medical and family backgrounds, which requires them to travel for interviews and pay fees to collect medical and other records.

“That stuff takes time, and we’re not necessarily getting paid for that time, timely. It’s difficult,” said Sam Dworkin, a northern Virginia mitigation specialist.

And cases involving the death penalty— which President Donald Trump revived in federal cases this year—are among the most document-intensive, said Cynthia Short, a Missouri attorney who also works as a mitigation specialist and sentencing advocate.

The payment delay could make it harder for lawyers to find experts.

“If I have a Spanish-speaker client and I cannot find a Spanish-speaking interpreter to regularly visit my client, interpret documents or phone calls or evidence, I am not going to be able to do my work,” said Anthony Solis, a defense attorney who is the CJA panel representative for the Los Angeles-based Central District of California.

Defense lawyers have cited difficulties finding experts due to the funding deficiencies in pleas to courts to pause, or even dismiss, criminal cases against their clients—to mixed results.

While attorneys may be able to handle a payment delay, “it is not fair to ask their service providers to do so, particularly when they must come from out of state and incur lodging and travel costs out of pocket,” defense lawyers wrote in an October motion in Nevada federal court.

Border Crunch

The strain is particularly acute in the Southern District of California, due to the Trump administration’s focus on border enforcement.

Criminal filings there are up about 40% this year. As of Sept.10, 70% of remaining CJA panel lawyers said they had trouble securing interpreters, investigators, and other service providers they need to provide a defense, the district’s chief judge, Cynthia Bashant, said in a letter to US Rep. Darrell Issa (R-Calif.) requesting supplemental funds.

One Southern District-based CJA interpreter who requested anonymity, citing concerns of professional retribution, said service providers have floated coordinating work stoppages until the pressure alleviates.

Solis, the Los Angeles CJA panel representative, said the court hasn’t provided him a direct answer on whether CJA vendors should expect to be paid for all their work when funding resumes.

Bashant said in an interview vouchers can’t be certified until funding resumes, but everyone should expect to be paid for all their work.

“I certainly would not want to be the one standing out in front and saying, ‘I promise you, you all are going to get paid,’ because it’s not me making the payments,” Bashant said. “But that’s certainly my understanding.”

Personal Toll

For those who rely on CJA panel work for their income, “it’s a pretty desperate time right now,” said Sonia Salazar, a New Mexico-based mitigation specialist in criminal cases who hasn’t been paid since May.

Several providers said they’ve had to focus more on state or private cases to make ends meet. Others said they’re second guessing whether to continue the work and experiencing rising anxiety.

“It is getting harder and harder now to get up in the mornings, sit in traffic for almost an hour to get to an appointment, when in the back of your head you’re thinking, ‘Am I ever gonna get paid for this?’” San Diego-based interpreter Ricardo Esquivias said.