Defending Terrorists: How You End Up With a Terror Suspect for a Client

New York, NY —

Most of the terror suspects in the Southern District of New York end up with a lawyer who gets paid by the government.

“As a general rule, terror defendants don’t have any money, so they’re not in a position to retain counsel,” says Ron Kuby, a long-time defense attorney who’s represented several terror suspects in the Southern District of New York over the past 30 years.

Lawyers say terrorism cases are especially expensive cases for both prosecutors and defense attorneys. The trials can last months, and a large case will easily involve hundreds of thousands of documents. Most defendants can’t afford the hours of time a defense lawyer would bill on a typical terror case.

The default provider of appointed counsel is the Federal Defenders of New York. Federal defenders are assigned randomly to terror cases on their “duty days”--days when they are assigned to pick up any client whose case ends up in court.

When a terror suspect shows up for his first court appearance, the federal defender on duty gets assigned to that case. If the Federal Defenders office has a conflict of interest with representing a particular terror suspect, the court will usually appoint a lawyer from the Criminal Justice Act (CJA) panel.

The CJA Panel is made up of approximately 185 private practitioners, most of whom earn a living taking on a combination of retained and appointed clients. Defense lawyers say getting selected to serve on the CJA panel is competitive. Many who apply are ultimately rejected.

“Let’s face it,” says Kuby, who applied to get on the CJA Panel in the late 1990s but was rejected by the court. “It provides a steady income stream, steady business, lots of paying work, and your clients are delivered to you. I mean, how good is that?”

Kuby says he suspects he was rejected because he’s known as a radical, outspoken lawyer who isn’t afraid of being obstreperous in court. He says the court picks its favorites to be on the panel.

But Judge John Koeltl, who helps oversee the selection of lawyers to the CJA Panel, says he disagrees.

“We seek the most qualified lawyers,” says Koeltl, “and I don’t believe there’s any favoritism.”

The federal court pays CJA lawyers $125 an hour for non-death-penalty cases. The rate for death penalty cases is $178 an hour. Defense lawyers say that’s less than a quarter of the rate a typical retained client would pay.