Due Process Rights of Attorneys Representing Indigent Defendants, Rosenfield v. Wilkins 

Under the Criminal Justice Act, federal courts of appeals appoint counsel to (among others) indigent capital defendants who are appealing a denial of habeas corpus.  Each circuit has a "plan" that outlines how counsel are appointed and compensated.  These plans vary widely across the circuits.  Under the Fourth Circuit plan, the attorney submits a payment voucher to the clerk of court at the end of a case.  The voucher is reviewed by the Chief Executive of the court and then approved by the Chief Judge, who has the final say as to the amount of reimbursement.  The Fourth Circuit has no guidelines to guide the Chief Judge's discretion.  Nor is the Chief Judge required to give any reasons for his decision, or receive any explanations from the attorney.  There is no avenue to grieve or appeal the Chief Judge's decision on the amount of fees.

Bobby Swisher, who was executed in 2003, was represented by the Fourth Circuit by Steven Rosenfield and Ed Wayland.  They submitted their vouchers as required.  Chief Judge Wilkins ultimately cut their fees by 70%.  As he did not provide any explanation for this, the decision appears to be completely arbitrary.  Fed up, Steve and Ed filed a class action lawsuit in U.S. District Court against Judge Wilkins in his capacity as the head administrative official of the Fourth Circuit.  They allege that the Fourth Circuit's processing of payment vouchers violates the Due Process Clause because it is utterly devoid of procedural protections.  We are now representing the plaintiffs in this case.  On October 18, 2006 Chief Judge Loken of the Eighth Circuit Court of Appeals dismissed our case and we appealed to the Fourth Circuit. On May 28, 2008, the court ruled against us, holding that new, improved procedures (instituted after our case was filed) mooted our due process concerns.

Court Documents:
Appellate Brief- U.S. Court of Appeals, Fourth Circuit (pdf)


Rebecca Glenberg, ACLU of Virginia

Pro Bono Law Firm(s)

Victor M. Glasberg, Alexandria

Date filed

July 15, 2006


U.S. District Court, Charlottesville