SC federal judges warn of dire money situation in federal criminal courts

Six federal judges in South Carolina, including Chief U.S. Judge Timothy Cain, have written a letter highlighting a critical money shortage in the state’s federal criminal justice system.

The situation they shine a light on involves a lack of federal funds to pay South Carolina’s 127 private criminal defense attorneys — called “panel attorneys” — who are financed with public money to represent indigent defendants charged with federal crimes, wrote U.S. Judge Timothy Cain, a former state judge and former law partner of U.S. Sen. Lindsey Graham, R-S.C.

Cain was joined by five of his fellow S.C. federal judges in writing the letter, dated Aug. 19.

“Judges and prosecutors cannot do their jobs without defense attorneys, and cases cannot get resolved in a timely fashion,” the judges wrote.

South Carolina’s taxpayer-supported criminal defense lawyers are supposed to be paid by Congressional funding. But this year’s federal funding for all the states has now dried up.

“Funds for payment of attorneys appointed to represent indigent defendants in federal court were exhausted in early July,” the judges wrote.

Those private taxpayer-supported attorneys don’t just represent run-of-the-mill accused drug dealers or gun traffickers.

They have represented high-profile defendants in cases of high public interest, such as white supremacist Dylann Roof, who killed nine parishioners at Charleston’s Mother Emanuel AME Church in 2015, and most of the 34 defendants from South Carolina charged and convicted of offenses in the storming the U.S. Capitol on Jan. 6, 2021.

Under the U.S. Constitution, all defendants charged in criminal cases must have a lawyer. That right to counsel was affirmed in a 1963 U.S. Supreme Court decision, Gideon v. Wainwright. The system not only ensures fairness to defendants, but having a competent defense attorney as an opponent helps keep prosecutors’ errors to a minimum.

The judges’ letter was written to the state’s 127 taxpayer-supported private panel lawyers who are qualified to represent indigent defendants in the federal court system. The apparent purpose of the letter was to take judicial notice of the situation and to let those attorneys know that the judges feel their pain.

It is rare for judges to make statements beyond the court record of a particular case. The State newspaper obtained a copy.

“Even though you are not being paid, your bills must be paid. We also know that overhead expenses for utilities, staff salaries, professional liability insurance, rent, mortgages, worker’s compensation insurance, supplies, and numerous other professional expenses continue to accrue. This is most impactful on lawyers who operate small businesses,” the judges wrote to the lawyers.

“Payments for interpreters, experts, and investigators have stopped,” the judges wrote.

Bill Nettles, chief federal pubic defender for South Carolina, said the 127 Palmetto State panel lawyers who take federal criminal cases are an essential part of the federal court system.

Of the hundreds of defendants each year who are indigent and can’t afford a defense lawyer, his office with 22 full-time public defender attorneys (including himself) handles about 75% of the South Carolina federal cases, Nettles said. The other 25% are handled by the 127 taxpayer-supported federal defense attorneys, Nettles said.

“We’re really lucky we have them,” Nettles said.

“Being a panel lawyer is a very complicated job. There’s a lot of technical legal stuff they need to know. They need to be trained. They need to have the experience. Not just anybody can do this work,“ Nettles said.

“Without the panel lawyers, the system couldn’t function,” Nettles said.

In their letter, the judges noted that a federal budget is expected to be implemented in October and payments will likely start again.

Many of the lawyers agree to be court-appointed lawyers representing indigent clients because of idealistic reasons, the judges acknowledged.

“You have agreed to represent those unable to pay — not because you want to make a lot of money, for the payment rates for (your) representation is well below those charged to paying clients. The primary reason you take on indigent clients, as one seasoned lawyer put it is ‘because you want to give something back for the privilege of practicing law in the greatest justice system in the world’,” the judges wrote.

Federally funded lawyers representing indigent defendants make $175 an hour, well below what many private private attorneys make. In a complex case or a trial lasting days, they can petition the court for more pay.

Renee Alt-Summers, a Columbia lawyer who has been a panel attorney for 25 years, said the judges’ statement “signifies the importance of the issue.”

Some of her colleagues have gone into debt, putting expenses on credit cards and not taking vacations, she said.

Some attorneys, like her, are owed tens of thousands of dollars, she said. One attorney who had a trial is owed $40,000 to $50,000, she said.

The limit for panel attorneys to be paid for each case is $13,600, but attorneys can petition a judge to exceed that limit, she said. If a trial lasts several days, “you are definitely going over the limit,” she said..

“Anytime you cut off an income stream, it affects every aspect of your business. We are all still working, and we all have to pay our rent,” Alt-Summers said. “And we also have to pay paralegals and our office support staff.”

Some 90% of federal criminal defendants use either a public defender or a tax-supported private attorney because they can’t afford a private attorney, Alt-Summers said.

For example, former S.C. House Rep. R.J. May, R-Lexington, was thought to be a prosperous consultant who would easily afford a private attorney.

Now charged with sex crimes against children, May — a hardline conservative — has declared himself financially unable to hire a private lawyer and has been appointed a public defender, Jenny Smith.

South Carolina’s dire funding situation is mirrored nationwide.

According to the U.S. Courts internet site, the money shortfall affects panel attorneys in states across the country.

“The funding crisis has prompted concern throughout the federal Judiciary that many of these private lawyers, known as panel attorneys, could decline new cases. That could leave defendants, even those on death row, without adequate representation,” the U.S. Courts statement said. .

There are more than 12,000 private panel attorneys throughout the country who accept their assignments annually. About 85% of them work for small firms or are solo practitioners who can ill afford long delays in payments for their work, the U.S. Courts statement says.

Besides Judge Cain of Anderson, federal judges’ names on the letter were Joseph Dawson III of Florence and Bruce Hendricks of Charleston. Magistrate judges names on the letter were Kevin McDonald of Greenville, Mary Gordon Baker of Charleston and Kaymani West of Florence.