Chief Judge Bazelon then ruled that in those cases where retained counsel is to be considered for appointment, both the retained attorney and the defendant should make a full disclosure to the court of the pertinent facts. With that full disclosure there should be a statement by retained counsel that he is willing to accept appointment on a basis that will compensate him at Criminal Justice Act rates for allowable items under the Act for all his services and expenses from the time he was first engaged, less the total amount received as retained counsel. There should also be a showing by retained counsel of the reasons why substitution of the Federal Public Defender would work to defendant's disadvantage.
It should also be observed that this is not a "complex" case warranting compensation beyond the statutory limits. It is an armed bank robbery case in which the main evidence against defendant is composed of eyewitness identification, a claim of flight the day after the robbery, and testimony of conversations in an attempt to induce another to join defendant in committing the robbery. Aside from the usual matters of attacking credibility, the main defense is alibi, with a number of witnesses to support that claim.
The Federal Public Defender and his staff are highly competent and experienced in the defense of criminal cases, not only from their work in that office but in the New Jersey Public Defender's Office from which they were drawn. That system is the oldest and most experienced in the country, going back to 1963 on an experimental basis in Essex County, to a full-fledged statewide system since 1967. The court cannot accept defendant's bare assertion that he lacks confidence in the office of the Federal Public Defender, and that he will not cooperate with any attorney in that office as representing anything other than a deliberate attempt to select his own assigned counsel.
In its memorandum of February 3, 1976, the court ruled that the time from December 12, 1975 to February 3, 1976 was excludable time under the Speedy Trial Act of 1974 because of the pendency of the oral motion of December 12, 1975, on which papers were not received until January 23, 1976, and advisement of that motion from then until February 3, 1976, if that Act applies at all.
The court now finds that the elapsed time since February 3, 1976 until submission of papers (to be listed below) and determination of the present motion is also excludable time, if the Act applies, first because the defendant has effectively made himself "unavailable" by his recalcitrant refusal to work with the Federal Public Defender, already assigned, to prepare for retrial, and because of the pendency of the present motion. In his letter to the court De Freitas complains of delay, but the delay is due entirely to his own recalcitrance, 18 U.S.C. § 3161(h)(3).
Retained counsel is directed to prepare and submit to the court the following papers:
1. A copy of his retainer agreement, as required to be kept under N.J. Court Rule R. 1:21-6(b);
2. An itemized statement of all payments received in connection with the case, giving the date and amount of each payment, the name of the person making the payment and the medium of payment;
3. An itemized statement of all services rendered and expenses paid or incurred, in the same form and detail as is required for vouchers of counsel under the Criminal Justice Act, indicating separately the time in court and the time out of court;
4. A statement of the reasons why representation of De Freitas by the Federal Public Defender would work to the disadvantage of De Freitas;
5. An affidavit of De Freitas verifying items 1, 2 and 3 to the extent of his knowledge thereof;
6. A statement of retained counsel that, if appointed, he will accept payment for services and expenditures to the extent allowable under and at the rates set by the Criminal Justice Act for a case that is not "complex", for all services and expenditures heretofore rendered or incurred, or hereafter to be rendered or incurred in this case, after deducting from the total so allowable all payments received as retained counsel, any excess to be paid to the Clerk of this court to be held subject to the provisions of 18 U.S.C. § 3006A(f): and see, Guidelines for the Administration of the Criminal Justice Act, II C-3c (September 16, 1974).
The foregoing materials are to be submitted on or before April 12, 1976 (the return day of the motion). The court will thereupon evaluate the submission and arrive at a disposition as soon as feasible. The papers submitted are to be sent to the court at chambers under seal and are not to be filed or served except as the court may order.
It remains to consider De Freitas' claim that his present federal custody with a State detainer against him precludes his receiving credit for time served on his State sentence. This is a matter involving State law on which this court cannot rule. Conceivably, he can ask the State Parole Board for a hearing on whatever charges may be pending for parole violation, and the usual arrangements between the jurisdictions can be made for his appearance there. In the event that those proceedings culminate in a revocation of parole, proceedings can be had here for his remand to State custody to serve his sentence, subject to a detainer for the pending federal charge.
That aspect, of course, is to be handled by his counsel; the court cannot serve as De Freitas' attorney. At the moment, his assigned counsel is the Federal Public Defender in this court, and that office can cooperate with the New Jersey Public Defender or whoever else undertakes to handle the request for hearing and hearing before the Parole Board.
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