MILLIKEN. VAN SUSTEREN & CANAN, P.C.
ATTORNEYS AT LAW
511 E STREET, N W.
WASHIGNTON, D C 20001
(202) 393-7676

RUSSELL F CANAN of COUNSEL
STHEPEN G MILLIKEN DONNA WULKAN
KAREN M. SCHNEIDER
GRETA a VAN SUSTEREN

EX PARTE
ADMITTED IN MARYLAND

July 22, 1985

The Honorable Aubrey E. Robinson, Jr.
Chief Judge of the United States
District Court for the District
of Columbia
United States Courthouse
3rd & Constitution Avenue, N.W.
Washington, D.C. 20001
Re: United States v. Ellen Thomas
Criminal No. 84-255

Dear Chief Judge Robinson:

I was appointed pursuant to the Criminal Justice Act, 18 U.S.C. § 3006, et. seq., to represent Ms. Ellen Thomas in the above captioned matter. Recently, I attempted to procure fees for witnesses subpoenaed on behalf of Ms. Thomas' defense. My concerns regarding the procedure required for obtaining witness fees in indigent defendant matters prompted this letter as a result of the Honorable Joyce Hens Green's declination (through Her Honor's secretary) to resolve this matter of courtwide concern. 1/

______________________________

1/ Attached Your Honor will find copies of the letters to Judge Green, submitted ex perte, and describing my first exposure to the procedures for indigent defense witness compensation. On page two of that letter, I expressed a degree of comfort in revealing the subject witness names to the Court, and attached copies of the subject subpoenas. I am not at all comfortable revealing the names to the executive and ask that the ex perte character of this continuing request for relief be respected. A copy of this letter without enclosures (and, thus without divulging witnesses' identities) is being provided to Assistant United States Attorney Pamela Stuart who was assigned to the above-entitled case in order that the Court may have the benefit of any input from her office.

Chief Judge Robinson
July 22, 1985

It is my understanding that, in order to procure indigent witness fee payments through the United States Marshall's Office, a CJA attorney must first obtain written authorization from the Office of the United States Attorney. The United States Attorney's Office will not authorize blank subpoena vouchers; therefore, in order to procure payment, the attorney would be forced to obtain from the assigned Assistant United States Attorney approval for payments of witness fees, thereby divulging defense witness identities to the official prosecuting the concerned client.2/ Upon further investigation, I observed that the voucher forms permit approval of witness compensation by a United States District Judge. However, the Marshall's Office informs me that the voucher forms are not to be possessed by anyone who does not have signature cards on file with the Marshall's Office.

Because there are no signature cards on file for any United States District Judges, I am back to my original problem: procuring authorization for witness fee payments through the very office which prosecutes the case.

Generally, I imagine this problem is not a frequent one since requests for fees usually follow the trial and disclosure of the identity of the defense witnesses. However, I believe there must be cases similar to that of Ms. Thomas, where the defense obtained a judgment of acquittal prior to the presentation of its case, or more commonly, cases where the defense did not call to the stand all witnesses subpoenaed for trial. I am concerned, for example, that in the event of future prosecution of Ms. Thomas' disclosure of the identity of her witnesses might prejudice her defense.

The basis of my concern in this case, and generally, springs from the equal protection and due process issues regarding this procedure. A defendant with financial resources is able to subpoena and pay witnesses without ever disclosing the witness' identity to the prosecuting official. An indigent defendant, on the other hand, is required to disclose witnesses and thereby defense strategy to the United States Attorney in order to obtain payment for those witnesses. The only difference between the two defendants is their ability to pay the fees.

In the instant case, the prosecution of a political dissident as one among a number of criminal prosecutions brought against this White House vigiler, revelation of witness names could prejudice the defendant as well as reveal citizen identities unnecessarily to executive investigative authorities.

Chief Judge Robin son
July 22. 1985

It is well settled that the Constitution, through due process and equal protection, guarantees " [m]eaningful access to justice. " Ake v. Oklahoma, __U.S.__, 105 S.Ct. 1087, 1093 (1985). The Supreme Court, in light of this principle, has held that an indigent defendant has the right to trial transcripts on appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956); the right to assistance of counsel during trial, Gideon v. Wainwright, 372 U.S. 353, 83 S.Ct. 814 (1963); access to adequate assistance for indigent prisoners in preparing legal papers, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977); and the right to appeal without prepayment of costs, Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917 (1962).

Although the requirement for witness fees does not totally foreclose obtaining witnesses for indigent defendants, it does require disclosure of these witnesses to the very person prosecuting the case thereby creating substantial prejudice to the defense. Again, although the present case has been determined, there is a possibility that future prosecutions may be brought against Ms. Thomas wherein the subject witnesses would be essential to her defense.

A similar requirement in the Eastern District of Missouri was held a discriminatory practice. United States v. Brown, 535 F.2d 424 (8^th Cir. 1976). That district required that an indigent defendant's subpoena applications be sent to the government. The Eighth Circuit found the practice discriminatory for two reasons: (1) it required disclosure without requiring reciprocal discovery from the government; and (2) an indigent defendant was discriminated against since a defendant with financial resources was not subject to the same disclosure requirement. Id. at 429. The identical discrimination exists in the present situation.

I am assuming that the authority under which the United States Marshall's Office requires the approval of an Assistant United States Attorney is found in Rule 17(b). That rule provides that the costs of the witnesses "shall be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of the government. Rule 17(b), 18 U.S.C. Fees for government witnesses must have the authorization of the United States Attorney's Office. 28 U.S.C. 1825. Therefore, it would appear that the procedure in the United States Marshall's office is statutorily correct. However, the procedure conflicts with constitutional principles. A similar situation is discussed in United States v. Espinoza, 641 F.2d 153 (4^th Cir. 1981). Prior to the 1966 amendment, Rule 17(b) required that a motion be submitted to the Court requesting witness subpoenas for indigent defendants. That procedure resulted in disclosure of witnesses to the government. As a result of the constitutional concerns, the procedure for witness subpoenas was chanced so that the request

Chief Judge Robinson
July 22, 1985

could be madeex perte "thus assuring that the government not become privy thereto."United States v. Espinoza, 641 F.2d 153, 158 (4^th Cir. 1981). In the Espinoza case, the Fourth Circuit held that since the requestfor subpoenas "was made to the impartial court only, and not to his government adversary," the constitutional protections were adhered to. Id. at 158 [emphasis added]. It is difficult to believe that Congress would amend the Rule in order to resolve constitutional problems and through statute create the same constitutional problem.

The Superior Court of the District of Columbia processes vouchers for witness fees through the court finance office. The prosecuting official never becomes involved, thereby protecting an indigent defendant's defense strategy. That office permits payment based on the appointed counsel's authorization. A similar procedure would be possible here.

Changing the procedure administratively would be the ideal resolution to this problem. However, if that is not possible in light of the statutory problems, it may be necessary to seek relief to resolve the federal question through a Bivens action pursuant to the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the Constitution.

I write seeking an administrative solution (and will refrain from filing suit until mid-September, 1985) to avoid the burden of litigation upon all parties and upon the Court in a matter of constitution deprivation readily remedied by placing United States District Judge signature cards in the Marshall's Office, if not permitting authorization of Criminal Justice Act practitioners.

I would be pleased to assist the Court in remedying what appears to be a flagrantly unconstitutional practice. If I am ignorant of its justification, I would welcome the education.

Respectfully submitted,
/s/Stephen G. Milliken
Stephen G. Milliken
Enclosure

cc: The Honorable Joyce Hens Green
United States District Judge
United States Courthouse
3rd & Constitution Ave., N.W.
Washington, D.C. 20001

Copy without enclosures to Pamela Stuart, Esquire,
Assistant United States Attorney

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