Courts are encouraged to require the submission of a case budget in all federal capital prosecution cases and capital habeas corpus representations. [Guide, Vol. 7, § 640.10]
Case budgets should be submitted ex parte and filed and maintained under seal. The budget should be incorporated into a sealed initial pretrial order that reflects the understandings of the court and counsel regarding all matters affecting attorney compensation and reimbursement and payments for investigative, expert, and other services. An approved budget should act as a guide for the attorney's use of time and resources. [Guide, Vol. 7, § 640.20]
The initial litigation budget is subject to modification in light of facts and developments that emerge as the case proceeds. For instance, budgets should be updated if the prosecution seeks death penalty authorization. Budgets may be submitted for the entire case, or the court may determine that defense counsel should submit budgets for shorter intervals of time, such as stages of a representation (e.g., in a federal capital prosecution case, through the Department of Justice determination of whether to seek the death penalty).
Recognizing that investigative, expert, and other services may be required before there is an opportunity for counsel to prepare a case budget or for the court to approve it, courts should act upon requests for services where prompt authorization is necessary for adequate representation. Courts, in examining the case budget, may reconsider amounts authorized for services prior to the budget's approval; however, courts may not rescind prior authorization where work has already been performed. [Guide, Vol. 7, § 640.40(a)-(b)]
See the Guide, Vol. 7, § 640.30(a)-(h) for additional guidance about matters to be included in capital case budgets.
When processing budgets, the presiding judicial officer should send the case budget for a capital representation to the chief judge of the court of appeals for approval, consistent with guidelines governing investigative, expert, and other services in such cases and specific court policies. Counsel should advise the court of significant changes to the estimates contained in the order, or as otherwise directed by the court.
The Administrative Office of the U.S. Courts (AO) has created case-budgeting worksheets and instructions for federal capital prosecutions. As part of the case-budgeting pilot project approved by the Judicial Conference of the United States at its session in September 2005, the Ninth Circuit developed Microsoft Excel worksheets to budget capital prosecutions and non-capital mega cases. The Ninth Circuit also uses worksheets in Microsoft Excel to budget capital habeas corpus § 2254 representations. One major feature of the worksheets is that the attorney budgeting categories correspond to the in-court and out-of-court categories on the Form CJA 30, Death Penalty Proceedings: Appointment of and Authority to Pay Court-Appointed Counsel and Form CJA 20, Appointment of and Authority to Pay Court-Appointed Counsel (non-capital cases). The Ninth Circuit worksheets can be obtained by contacting the Office of Defender Services (ODS), Legal and Policy Branch Duty Day Attorney, at 202-502-3030. Judges and panel attorneys in the pilot circuits (Second, Sixth, and Ninth) should contact their circuit's case-budgeting attorney.
See Memorandum of the Director, Administrative Office of the U.S. Courts, July 22, 2008 for additional contact and other information regarding case budgeting.