B. Counsel Appointment
Ensuring qualified counsel is the first purpose of capital case representation standards (see supra). This leads then to standards relating to how counsel are appointed, using what qualification standards.
The following topics are included in this section:
- Method of appointment
- Trial attorney qualifications/experience
- Appeals attorney qualifications/experience
- Postconviction attorney qualifications/experience
- Monitoring of performance and removal from roster
- Requirement for training
Compare the standards below to those found in Compendium Volume I, "Standards on the Administration of Defense Services," especially the requirement that there be a system or plan. See also "Plan Elements" infra in this volume.
1. Method of Appointment
Commentary. How counsel is appointed determines, in part, who is appointed to represent defendants in capital cases. The several standards here include those for screening for qualifications, roster of attorneys, distributing assignments to all members of the roster, and locus of appointment authority (e.g., court).
Although many local jurisdictions have special qualifications for attorneys in capital cases, very few also have special appointment procedures. But see Cobb County (Georgia) Indigent Defense Program Guidelines, Article II, Section 1, "Method of Appointment in Murder Cases," requiring trial judge or chief judge approval of any defense counsel selected by the program administrator.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 4.1 Selection of Counsel
A. The legal representation plan should provide for a systematic and publicized method for distributing assignments in capital cases as widely as possible among qualified members of the bar.
B. The appointing authority should develop procedures to be used in establishing two rosters of attorneys who are competent and available to represent indigent capital defendants. The first roster should contain the names of attorneys eligible for appointment as lead defense counsel for trial, appeal or postconviction pursuant to the qualification requirements specified in Guideline 5.1; the second roster should contain the names of attorneys eligible for appointment as assistant defense counsel for trial, appeal or postconviction pursuant to the qualification requirements specified in the same Guideline.
C. The appointing authority should review applications from attorneys concerning their placement on the roster of eligible attorneys from which assignments are made, as discussed in subsection (b). The review of an application should include a thorough investigation of the attorney's background, experience, and training, and an assessment of whether the attorney is competent to provide quality legal representation to the client pursuant to the qualification requirements specified in Guideline 5.1 and the performance standards established pursuant to Guidelines 11.1 and 11.2. An attorney's name should be placed on either roster upon a majority vote of the committee.
D. Assignments should then be made in the sequence that the names appear on the roster of eligible attorneys. Departures from the practice of strict rotation of assignments may be made when such departure will protect the best interests of the client. A lawyer should never be assigned for reasons personal to the committee members making assignments.
In jurisdictions where a defender office or other entity by law receives a specific portion of or all assignments, the procedures in (b) through (d) above should be followed for cases which the defender office or other entity cannot accept due to conflicts of interest or other reasons.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 4.1 Selection of Counsel
a. The legal representation plan should provide for a systematic and publicized method for distributing assignments in capital cases as widely as possible among qualified members of the bar.
b. The appointing authority should develop procedures to be used in establishing two rosters of attorneys who are competent and available to represent indigent capital defendants. The first roster should contain the names of attorneys eligible for appointment as lead defense counsel for trial, appeal or postconviction pursuant to the qualification requirements specified in Standard 5.1; the second roster should contain the names of attorneys eligible for appointment as co-counsel for trial, appeal or postconviction pursuant to the qualification requirements specified in the same Standard.
c. The appointing authority should review applications from attorneys concerning their placement on the roster of eligible attorneys from which assignments are made, as discussed in subsection (b). The review of an application should include a thorough investigation of the attorney's background, experience, and training, and an assessment of whether the attorney is competent to provide quality legal representation to the client pursuant to the qualification requirements specified in Standard 5.1 and the performance Standards established pursuant to Standards 11.1 and 11.2. An attorney's name should be placed on either roster upon a majority vote of the committee.
d. Assignments should then be made in the sequence that the names appear on the roster of eligible attorneys. Departures from the practice of strict rotation of assignments may be made when such departure will protect the best interests of the client. A lawyer should never be assigned for reasons personal to the committee members making assignments.
e. In jurisdictions where a defender office or other entity by law receives a specific portion of all assignments, the procedures in (b) through (d) above should be followed for cases which the defender office or other entity cannot accept due to conflict of interest or other reasons.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
105.3.12 Appointments in Capital Cases
(a) In each case in which the death penalty may be imposed and the defendant is unable to afford counsel, the court shall appoint the capital defender to represent the defendant.
(1) Subject to [Kansas law], the court may appoint co-counsel from the capital appointments panel list to represent the defendant in accordance with the system established by these regulations for providing legal defense services for indigent persons charged with capital felonies. The court, however, shall not appoint any attorney as co-counsel without prior notice to the chief capital defender and the board.
(2) The court shall not appoint any attorney to provide representation in a capital felony without prior notice to the chief capital defender.
(3) Eligibility to serve on the capital appointments panel shall be limited to attorneys who have been screened pursuant to [Kansas law].
(b) The court shall appoint counsel for any indigent person accused of homicide from panel lists approved by the board. The court shall not appoint any attorney to provide representation to an indigent person accused of a felony without prior notice to the chief capital defender.
New York Court of Appeals, Standards for Appellate Counsel in Capital Cases
Standard 3. Creation of Court of Appeals Roster
(a) Delivery to Screening Panel. The Capital Defender Office shall review each application to determine that it is complete. The Capital Defender Office shall deliver all completed applications, within 30 days of receipt, to the appropriate Screening Panel, together with a statement setting forth the status of the attorney's completion of the training required by section 5, below, and its recommendations to the Screening Panel with respect to whether the attorney is qualified for appointment as appellate counsel in a capital case. The appropriate Screening Panel shall be the panel in the judicial department in which the attorney has his or her principal office for the practice of law.
(b) Designation by Screening Panel. Within 30 days of receipt of the application, each Screening Panel shall designate those attorneys deemed qualified for appointment as appellate counsel in a capital case, and shall report those designations to the Court of Appeals.
(c) Waiver or Deferral of Required Submissions. If an attorney cannot provide each of the above items, the Screening Panel, upon demonstration that the attorney is capable of providing effective representation as appellate counsel in a capital case, and after consideration of the recommendation of the Capital Defender Office, may:
(1) defer submission of any item(s) for a reasonable time, and in the interim designate the attorney as a qualified appellate counsel; or
(2) waive such submission.
(d) Establishment of the Roster. The Court of Appeals shall incorporate the names of each attorney found qualified by a Screening Panel into a single roster of attorneys qualified for appointment as appellate counsel in a capital case.
Standard 4. Additions to Court of Appeals Roster
(a) Requests for Reconsideration. Any attorney whose application for designation as qualified appellate counsel is rejected by a Screening Panel may apply to the Court of Appeals for reconsideration of his or her application pursuant to such procedures as may be prescribed by the Court of Appeals.
(b) Determination by the Court of Appeals. The Court of Appeals shall review each such application pursuant to the criteria set forth in these standards, including consideration of the recommendations of the Capital Defender Office and of the Screening Panel, and may add that attorney to the roster of qualified appellate counsel if the Court deems the attorney qualified to serve as appellate counsel in a capital case.
2. Trial Attorney Qualifications/Experience
Commentary. Capital cases require experienced counsel. The standards set forth here call for minimal experiential qualifications only. The ABA and NLADA standards for attorney qualification in death penalty cases are virtually identical.
Georgia and Kansas standards explicitly refer to the ABA standards, while the Louisiana, Nebraska, and Washington standards closely emulate them. The New York City standards add a new requirement that an attorney with capital case experience supervise and add higher experience requirements generally. The Vermont standards follow the ABA requirement in form but do not set experience requirements as high as the ABA does.
In addition to the standards displayed here, many local standards also include attorney eligibility criteria. See, for example, Second Judicial Circuit of Florida, Conflict Attorney Policies (October 1992) Standard I(B) "Basic Qualifications: Capital Cases"; Alameda County Bar Association, Court Appointed Attorneys' Program, Rules and Regulations (1988), Rule F(1) "Experience Requirements for Capital Cases"; Circuit Conflict Committee, Eleventh Judicial Circuit of Florida, Policies and Procedures (1992) "Attorney Qualifications: Category IV Cases"; Montgomery County (Alabama), Capital Murder Appointment Procedures; Philadelphia General Court, Regulation 89-3, Rule 406, "Standards for Appointment of Counsel," Rule 406-1, "Standards for Appointment in Homicide Cases"; Gwinnett Judicial Circuit (Georgia) Internal Operating Procedure 98-5, Part X Attorneys Guideline 10.1(A) "Qualification of Panel Attorneys in Felony-Life/Death Cases"; and Cobb County (Georgia) Indigent Defense Program Guidelines, Article 1, Section 4, "Murder," Section 5, "Capital Cases." Some additional state-level standards include these: Nevada Supreme Court Rules, Rule 250 "Procedures in Capital Cases," Subsection (IV), "Qualification of Defense Counsel"; North Carolina State Bar, Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases, Art. VII §7.3 (1995); Indiana Rules of Criminal Procedure, Criminal Rule 24: Capital Cases, §(B) "Appointment of Qualified Trial Counsel"; Utah Rules of Criminal Procedure, Rule 8, "Appointment of Counsel," §(b)(c); and Arkansas Public Defender Commission, Minimum Standards, "Attorney Qualifications: Certification Criteria, Attorney Eligibility: Death Cases" (1997).
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 5.1 Attorney Eligibility
1. TRIAL
A. Lead trial counsel assignments should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. are experienced and active trial practitioners with at least five years litigation experience in the field of criminal defense; and
iii. have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead counsel or co-counsel in at least one case in which the death penalty was sought. In addition, of the nine jury trials which were tried to completion, the attorney should have been lead counsel in at least three cases in which the charge was murder or aggravated murder; or alternatively, of the nine jury trials, at least one was a murder or aggravated murder trial and an additional five were felony jury trials; and
iv. are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
v. are familiar with and experienced in the utilization of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence; and
vi. have attended and successfully completed, within one year of their appointment, a training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought; and
vii. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
B. Trial co-counsel assignments should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. who qualify as lead counsel under paragraph (A) of this Guideline or meet the following requirements:
a. are experienced and active trial practitioners with at least three years litigation experience in the field of criminal defense; and
b. have prior experience as lead counsel or co-counsel in no fewer than three jury trials of serious and complex cases which were tried to completion, at least two of which were trials in which the charge was murder or aggravated murder; or alternatively, of the three jury trials, at least one was a murder or aggravated murder trial and one was a felony jury trial; and
c. are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
d. have completed within one year of their appointment at least one training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought; and
e. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial experience or extensive civil litigation experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
i. Experience in the trial of death penalty cases which does not meet the levels detailed in paragraphs A or B above;
ii. Specialized postgraduate training in the defense of persons accused of capital crimes;
iii. The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent representation.
Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation
1. Qualifications for Appointment
a. Quality of Counsel. Courts should ensure that all attorneys appointed in federal death penalty cases are well qualified, by virtue of their prior defense experience, training and commitment, to serve as counsel in this highly specialized and demanding type of litigation. High quality legal representation is essential to assure fair and final verdicts, as well as cost-effective case management.
b. Qualifications of Counsel. As required by statute, at the outset of every capital case, courts should appoint two counsel, at least one of whom is experienced in and knowledgeable about the defense of death penalty cases. Ordinarily, "learned counsel" should have distinguished prior experience in the trial, appeal, or postconviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or postconviction review that, in combination with co-counsel, will assure high quality representation.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 5.1(1)
The appointing authority should distribute assignments in capital cases to attorneys who possess the following qualifications:
1. TRIAL
A. Lead trial counsel assignments should be distributed to attorneys who:
(i) are members of the bar admitted to practice in the jurisdiction or admitted to practice prohac vice; and
(ii) are experienced and active trial practitioners with at least five years litigation experience in the field of criminal defense; and
(iii) have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead counsel or co-counsel in at least one case in which the death penalty was sought. In addition, of the nine jury trials which were tried to completion, the attorney should have been lead counsel in at least three cases in which the charge was murder or aggravated murder; or alternatively, of the nine jury trials, at least one was a murder or aggravated murder trial and an additional five were felony jury trials; and
(iv) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
(v) are familiar with and experienced in the utilization of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence; and
(vi) have attended and successfully completed, within one year of their appointment, a training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought; and
(vi) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
B. Trial co-counsel assignments should be distributed to attorneys who:
(i) are members of the bar admitted to practice in the jurisdiction or admitted to practice prohac vice; and
(ii) who qualify as lead counsel under paragraph A of this Standard or meet the following requirements:
a. are experienced and active trial practitioners with at least three years litigation experience in the field of criminal defense; and
b. have prior experience as lead counsel or co-counsel in no fewer than three jury trials of serious and complex cases which were tried to completion, at least two of which were trials in which the charge was murder or aggravated murder; or alternatively, of the three jury trials, at least one was a murder or aggravated murder trial and one was a felony jury trial; and
c. are familiar with the practice and procedure of the criminal courts of the jurisdiction; and
d. have completed within one year of their appointment at least one training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought; and
e. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial experience or extensive civil litigation experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
(i) Experience in the trial of death penalty cases which does not meet the levels detailed in paragraphs A or B above;
(ii) Specialized postgraduate training in the defense of persons accused of capital crimes;
(iii) The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide competent representation.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 2.4 Panel Attorney Programs
(e) Cases in which the death penalty is sought shall be assigned only to attorneys of sufficient experience, skill and competence to render effective assistance of counsel to defendants in such cases. The American Bar Association "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" may be referred to as a suggestion for the determination of the experience, skill and competence of the attorneys.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
Standard E. Appointment of Counsel
The comprehensive plan shall provide for the appointment of trial counsel meeting the following qualifications.
1. Murder. To be eligible to serve as appointed counsel in a case where the accused is charged with murder, an attorney shall:
a. be an experienced and active trial practitioner with at least three (3) years of criminal litigation experience; and
b. have prior experience as lead or co-counsel in no fewer than three (3) felony jury trials that were Class C felonies or higher which were tried to completion.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
Rule 105-3-2 Eligibility to Serve (a)
(4) Each attorney assigned or appointed to the defense of any indigent person accused of a capital felony shall be a prequalified death penalty attorney. Each attorney shall be screened by the board to determine the attorney's qualifications to serve as defense counsel to an indigent person accused of a capital felony, pursuant to these regulations and "Guideline 5.4(1), Attorney Eligibility," as published in the 1989 version of the American Bar Association (ABA) "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the capital appointments panel shall be certified by the board.
(5) Each attorney assigned or appointed to represent an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment shall be prequalified by the board. Each attorney shall be screened by the board to determine the attorney's qualifications to serve as defense counsel to an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment, pursuant to these regulations and "Guideline 5.1(1), Attorney Eligibility," as published in the 1989 version of the American Bar Association (ABA) "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the capital appointments appellate panel shall be certified by the board.
(6) Each attorney assigned or appointed to represent an indigent person who has been convicted of capital murder and who is under a sentence of death in postconviction proceedings shall be prequalified by the board. Each attorney shall be screened by the board to determine the attorney's qualifications to serve as defense counsel to an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment, pursuant to these regulations and "Guideline 5.1(III), Attorney Eligibility," as published in the 1989 version of the American Bar Association (ABA) "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the capital appointments postconviction panel shall be certified by the board.
(7) To ensure compliance with these regulations in capital felony or homicide cases, each attorney assigned or appointed to the defense of any indigent person accused of a capital felony or a homicide shall be appointed from panel lists screened pursuant to these regulations and approved by the board.
(b) Except for appointment of an attorney to provide representation for an indigent person accused of a capital felony or a homicide, an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment or an indigent person who has been convicted of capital murder and who is under a sentence of death in postconviction proceedings, the judge may waive any of the above conditions if the attorney selected by the judge has sufficient training, resources, and experience to undertake the case in question.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part I. General Principles of Certification Eligibility. The following standards shall be applied to attorney certification under any part of this chapter:
Standard 7-1.1. Eligibility. The attorney shall be familiar with the practice and procedure of the criminal courts of Louisiana and shall be a member in good standing of the Louisiana Bar or admitted to practice pro hac vice.
Standard 7-1.2. Evidentiary Matters. The attorney shall be familiar with the use of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence.
Standard 7-1.3. Initial Training. Within one year of an initial application for certification under the standards of this Chapter, the attorney shall complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Standard 7-1.4. Continuing Training. To maintain certification, counsel shall, every two years from the date of certification, successfully complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Part II. Trial Lead Counsel. To be certified to serve as trial lead counsel, an attorney shall also satisfy the following minimum standards.
Standard 7-2.1. Eligibility Criteria. Trial lead counsel shall:
(A) Be an experienced and active trial practitioner with at least five years of litigation experience;
(B) Have prior experience as lead counsel in no fewer than nine jury trials tried to completion; of these nine jury trials, at least five must have involved felonies or two must have involved the charge of murder; and
(C) Have prior experience as lead counsel or associate counsel in at least one case in which the death penalty was sought and was tried through the penalty phase or have prior experience as lead counsel or associate counsel in at least two cases in which the death penalty was sought and where, although resolved prior to trial or at the guilt phase, a thorough investigation was performed for a potential penalty phase.
Part III. Trial Associate Counsel. To be certified to serve as trial associate counsel in a capital case, an attorney shall also satisfy the following minimum standards.
Standard 7-3.1. Eligibility Criteria. Trial associate counsel shall:
(A) Be an experienced and active trial or appellate practitioner with at least three years of litigation experience; and
(B) Have prior experience as lead counsel in no fewer than three felony jury trials which were tried to completion, including service as lead or associate counsel in at least one homicide trial.
Standard 7-6.2. Alternative Requirements; Trial Lead Counsel. An attorney seeking certification as trial lead counsel under Part VI of this Chapter, shall:
(A) Satisfy Standards 7-1.1, 7-1.2, and 7-2.1(A) of this Chapter;
(B) Substantially satisfy Standard 7-2.1(B) or 7-2.1(C); and
(C) In the case of certification by the Louisiana Indigent Defender Board, the applicant, prior to the start of trial in a capital case he or she has been appointed to handle, must successfully complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Standard 7-6.3. Alternative Requirements; Trial Associate Counsel. An attorney seeking certification as trial associate counsel under Part VI of this Chapter, shall:
(A) Satisfy Standards 7-1.1, 7-1.2, and 7-3.1(A) of this Chapter;
(B) Substantially satisfy Standard 7-3.1(B) of this Chapter; and
(C) In the case of certification by the Louisiana Indigent Defender Board, the applicant, prior to the start of trial in a capital case he or she has been appointed to handle, must successfully complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard III. Operating Policies and Procedures
C. Counsel Eligibility Standards
The following classes of attorneys are created to set the minimum standards for counsel in capital and non-capital cases at trial, appellate, and postconviction stages.
Class A: Counsel qualified as lead counsel in capital cases.
Class B: Counsel qualified as co-counsel in capital cases.
1. Qualifications for A
1.1 Member of the Nebraska bar or admitted pro hac vice.
1.2 Experienced and active in criminal defense with not less than five years experience in criminal litigation.
1.3 Prior experience as lead counsel in at least ten jury trials of serious or complex cases tried to completion, including:
(1) two murder cases as co-counsel and five felony jury trials of a Class III or higher felony, or
(2) one murder trial in which the death sentence was sought, and five felony jury trials of Class III or higher felony.
1.4 Experience in trial practice which includes the use of and challenge of psychiatric and other forensic experts, including, but not limited to ballistic, fingerprint, handwriting, DNA, pathologists, psychologists, and addictionologists.
1.5. Demonstrates proficiency and commitment which exemplify the quality of representation appropriate to capital cases. This will be judged by a history of participation in criminal continuing legal education programs, membership and activity in professional associations supporting criminal defense practitioners, and reputation among criminal law practitioners.
2. Qualifications for B
2.1 Member of the Nebraska bar or admitted pro hac vice.
2.2 Experienced and active in criminal defense with not less than three years experience in litigation of criminal defense.
2.3 Prior experience as lead or co-counsel in:
a. At least five jury trials of serious or complex cases tried to completion, including (1) one murder case or (2) two jury trials of Class III or higher felony.
2.4 Demonstrates proficiency and commitment which exemplify quality of representation appropriate to capital cases. This will be judged by a history of participation in criminal continuing legal education programs, membership and activity in professional associations supporting criminal defense practitioners, and reputation among criminal law practitioners.
4. Alternative Qualification
The Chief Counsel may determine an attorney is qualified even though the attorney may not meet all qualifications above. The Chief Counsel may, in his/her discretion permit any counsel to participate in a given case. The Chief Counsel will look to the following factors in deciding whether to consider such a special request:
4.1 Extensive criminal and/or civil trial experience;
4.2 Clearly demonstrated ability to provide competent representation;
4.3 Experience in death penalty trial not meeting standards above, such as work as counsel other than lead or co-counsel;
4.4 Specialized postgraduate training in defense of persons accused in capital crimes, such as experience in a death penalty resource center or law school postconviction project;
4.5 Availability of ongoing consultation support from experienced death penalty counsel.
New York City Indigent Defense Organization Oversight Committee, General Requirements for All Organized Providers of Defense Services to Indigent Defendants
Standard II. Qualification of Lawyers
B. Evaluation Criteria
1. Qualifications for Counsel
(b) Specific Criteria for Assignment of Trial Counsel to Particular Categories of Cases
(iii) Homicide Cases
(1) If the defense organization is assigned homicide cases, in addition to requiring that lawyers meet all the requirements for handling felony cases, does it require additional experience, including prior experience examining expert witnesses, before certifying lawyers as qualified to handle homicide cases?
(2) Does the defense organization require that lawyers conducting their first homicide trial be supervised by a lawyer who has previously tried homicide cases as lead or sole counsel?
Specific Guideline:
Each staff lawyer assigned by the defense organization to handle homicide cases without supervision must have had actual court experience in at least sixty criminal cases during the previous five years, involving at least:
(i) thirty negotiated pleas, dismissals, or other non-trial dispositions, at least ten of which occurred postindictment;
(ii) fifteen hearings in which oral testimony was taken and a decision was rendered;
Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Capital Cases
A. TRIAL COUNSEL
1. Court-appointed "lead counsel" must:
a. Be an active member in good standing of the Virginia State Bar or admitted to practice pro hac vice.
b. Have at least five years of criminal litigation practice with demonstrated competence.
c. Have had, within the past two years, some specialized training in capital litigation.
d. Have at least one of the following qualifications:
i. Experience as "lead counsel" in the defense of at least one capital case;
ii. Experience as "co-counsel" in the defense of at least two capital cases;
iii. Experience as "lead counsel" (or as lead prosecutor) in at least five felony jury trials in Virginia courts involving crimes of violence which carry, upon conviction, a minimum sentence of at least five years imprisonment.
e. Be familiar with the requisite court system, including specifically the procedural rules regarding timeliness of filings and procedural default.
f. Have demonstrated proficiency and commitment to quality representation.
2. Court-appointed "co-counsel" must:
a. Meet all of the requirements of "lead counsel" except 1(b) and 1(d).
Washington Defender Association, Standards for Public Defense Services
Standard Fourteen. Qualification of Attorneys
1. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services should meet the following minimum professional qualifications:
a. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and
b. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice.
2. Trial attorneys' qualifications according to severity or type of case:
a. Death Penalty Representation. Each attorney acting as lead counsel in a death penalty case shall meet the following requirements:
1. The minimum requirements set forth in Section 1; and
2. at least five years criminal trial experience; and
3. have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion; and
4. have served as lead or co-counsel in at least one jury trial in which the death penalty was sought; and
5. have completed at least one death penalty defense seminar within the previous two years.
3. Appeals Attorney Qualifications/Experience
Commentary. All of the several standards for trial attorney qualifications also set standards for appeals attorneys, except for the Georgia guidelines. Again, the ABA and NLADA standards are virtually identical and serve as the model for the states' standards.
See also, Utah Rules of Criminal Procedure, Rule 8, "Appointment of Counsel," §(d); Arizona Supreme Court Rules of Criminal Procedure, Rule 6.8, "Standards for Appointment of Counsel in Capital Cases," §(c), "Appellate and Postconviction Counsel" (1996); Indiana Rules of Criminal Procedure Criminal Rule 24, "Capital Cases," §(J), "Appointment of Appellate Counsel"; Philadelphia General Court Regulation 89-3, Rule 406, "Standards for Appointment of Counsel," Rule 406-2, "Appeals in Death Penalty Cases" (1996); and Second Judicial Circuit of Florida, Conflict Attorney Policies, Policy I, "Basic Qualification," §(E) "Capital Appellate Division" (1997). The Montgomery (Alabama) Capital Murder Appointment Procedures, Section 12, call for trial attorneys to continue to represent their clients in capital cases through the direct appeal process.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 5.1 Attorney Eligibility
II. APPEAL
A. Lead appellate counsel assignments should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. are experienced and active trial or appellate practitioners with at least three years experience in the field of criminal defense; and
iii. have prior experience within the last three years as lead counsel or co-counsel in the appeal of at least one case where a sentence of death was imposed, as well as prior experience within the last three years as lead counsel in the appeal of no fewer than three felony convictions in federal or state court, at least one of which was an appeal of murder or aggravated murder conviction; or alternatively, have prior experience within the last three years as lead counsel in the appeal of no fewer than six felony convictions in federal or state court, at least two of which were appeals of a murder or aggravated murder conviction; and
iv. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
v. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the appeal of cases in which a sentence of death was imposed; and
vi. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
B. Appellate co-counsel assignments may be distributed to attorneys who have less experience than attorneys who qualify as lead appellate counsel. At a minimum, however, appellate co-counsel candidates must demonstrate to the satisfaction of the appointing authority that they:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. have demonstrated adequate proficiency in appellate advocacy in the field of felony defense; and
iii. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
iv. have attended and successfully completed within two years of their appointment a training or educational program on criminal appellate advocacy.
C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial and/or appellate experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
i. Experience in the trial and/or appeal of death penalty cases which does not meet the levels detailed in paragraphs A or B above;
ii. Specialized postgraduate training in the defense of persons accused of capital crimes;
iii. The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent representation.
Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation
1. Qualifications for Appointments
c. Special Considerations in the Appointment of Counsel on Appeal. Ordinarily, the attorneys appointed to represent a death-sentenced federal appellant should include at least one attorney who did not represent the appellant at trial. In appointing appellate counsel, courts should, among other relevant factors, consider:
i. the attorney's experience in federal criminal appeals and capital appeals;
ii. the general qualifications identified in paragraph 1(a), above; and
iii. the attorney's willingness, unless relieved, to serve as counsel in any postconviction proceedings that may follow the appeal.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 5.1
II. APPEAL
A. Lead appellate counsel assignments should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice prohac vice; and
ii. are experienced and active trial or appellate practitioners with at least three years experience in the field of criminal defense; and
iii. have prior experience within the last three years as lead counsel or co-counsel in the appeal of at least one case where a sentence of death was imposed, as well as prior experience within the last three years as lead counsel in the appeal of no fewer than three felony convictions in federal or state court, at least one of which was an appeal of murder or aggravated murder conviction; or alternatively, have prior experience within the last three years as lead counsel in the appeal of no fewer than six felony convictions in federal or state court, at least two of which were appeals of a murder or aggravated murder conviction; and
iv. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
v. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the appeal of cases in which a sentence of death was imposed; and
vi. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
B. Appellate co-counsel assignments may be distributed to attorneys who have less experience than attorneys who qualify as lead appellate counsel. At a minimum, however, assistant appellate attorney candidates must demonstrate to the satisfaction of the appointing authority that they:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice prohac vice; and
ii. have demonstrated adequate proficiency in appellate advocacy in the field of felony defense; and
iii. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
iv. have attended and successfully completed within two years of their appointment a training or educational program on criminal appellate advocacy.
C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial and/or appellate experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
i. Experience in the trial and/or appeal of death penalty cases which does not meet the levels detailed in paragraphs A or B above;
ii. Specialized postgraduate training in the defense of persons accused of capital crimes;
iii. The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide competent representation.
Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases
Standard F. Appointment of Appellate Counsel
The comprehensive plan shall provide for the appointment of lead appellate counsel meeting the following qualifications.
1. Murder and Class A or B felony. To be eligible to serve as appointed counsel in a case where the accused is charged with murder or a Class A or B felony, an attorney shall be an experienced and active trial or appellate practitioner with at least three (3) years experience in criminal litigation and have completed prior to appointment at least six (6) hours of training in appellate practice in a course approved by the Indiana Public Defender commission.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
Rule 105-3-2 Eligibility to Serve (a)
(5) Each attorney assigned or appointed to represent an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment shall be prequalified by the board. Each attorney shall be screened by the board to determine the attorney's qualifications to serve as defense counsel to an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment, pursuant to those regulations and "Guideline 5.1(11), Attorney Eligibility," as published in the 1989 version of the American Bar Association (ABA) "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the capital appointments appellate panel shall be certified by the board.
Rule 105-3-12 Appointments in Capital Cases
(c) Appeals. The court shall appoint the state appellate defender to represent an indigent defendant in each appeal of a capital felony conviction in accordance with K.A.R. 105-10-2.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part IV. Appellate Lead Counsel. To be certified to serve as lead counsel in the appeal of a capital case, an attorney shall also satisfy the following minimum standards.
Standard 7-4.1. Eligibility Criteria. Unless certified in accordance with Part VI of this Chapter, appellate lead counsel shall:
(A) Be familiar with the practice and procedure of the Louisiana Supreme Court in the appeal of capital cases;
(B) Be an experienced and active trial or appellate practitioner with at least three years experience in the field of criminal defense;
(C) Have prior experience within the last three years as lead counsel in the appeal of no fewer than three felony convictions in federal or state court; and
(D) Have prior experience within the last three years as lead counsel or associate counsel in the appeal or postconviction application, in federal or state court, of at least one case where a sentence of death was imposed.
Part V. Appellate Associate Counsel. To be certified to serve as associate counsel in the appeal of a capital case, an attorney shall also satisfy the following minimum standards.
Standard 7-5.1. Eligibility Criteria. Unless certified in accordance with Part IV of this Chapter, appellate associate counsel:
(A) Shall be familiar with the practice and procedure of the Louisiana Supreme Court in the appeal of capital cases; and
(B) May have less experience than an attorney qualified to serve as lead appellate counsel, although such attorney shall have demonstrated adequate proficiency in appellate advocacy in the field of felony defense.
Part VI. Alternative Certification Procedure. Notwithstanding Parts II through IV of this Chapter, a district court judge may move the Board to certify as trial lead counsel, trial associate counsel, or appellate lead counsel, an attorney who does not strictly satisfy the specific standards above.
Standard 7-6.4. Alternative Requirements; Appellate Lead Counsel. An attorney seeking certification as appellate lead counsel under Part VI of this Chapter shall:
(A) Satisfy Standards 7-1.1, 7-1.2, 7-4.1(A) and 7-4.1(B) of this Chapter;
(B) Substantially satisfy Standard 7-4.1(C) or 7-4.1(D); and
(C) In the case of certification by the Louisiana Indigent Defender Board, the applicant, prior to filing a brief in the appeal of a capital case he or she has been appointed to handle, must successfully complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard III. Operating Policies and Procedures
C. Counsel Eligibility Standards
5. APPEAL
5.1 Lead appellate counsel assignments should be distributed to attorneys who:
a. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
b. are experienced and active trial or appellate practitioners with at least five years experience in the field of criminal defense; and
c. have five years experience in criminal litigation and criminal appeals as lead counsel or co-counsel in the appeal of at least one case where a sentence of death was imposed, as well as prior experience as lead counsel in the appeal of no fewer than three felony convictions in federal or state court, at least one of which was an appeal of a murder or aggravated murder conviction; or alternatively, have prior experience as lead counsel in the appeal of no fewer than six felony convictions in federal or state court, at least two of which were appeals of a murder or aggravated murder conviction; and
d. are familiar with the practice and procedure of the appellate courts of the jurisdiction; and
e. demonstrate proficiency and commitment exemplifying quality appropriate to serious criminal cases. This will be judged by a history of participation in criminal continuing legal education programs, membership and activity in professional associations supporting criminal defense practitioners, and reputation among criminal law practitioners.
5.2 Appellate co-counsel assignments may be distributed to attorneys who have less experience than attorneys who qualify as lead appellate counsel. At a minimum, however, appellate co-counsel candidates must demonstrate the following:
a. member of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
b. at least three years experience in the practice of law as an appellate lawyer. The appellate experience may include advising clients on questions or interpretations of law and/or administrative policies concerning criminal law, or serving as an attorney for state or federal appellate courts, or a combination of the above. The appellate attorney shall have knowledge of state and/or federal statutory and case law and constitutional provisions, the principles and practices of criminal law, judicial procedures and rules of evidence, the principles and practices of legal research, the procedures of trial, and the techniques of preparing and drafting legal documents and forms; and
c. familiarity with the practice and procedure of the appellate courts of the jurisdiction; and
d. demonstrates proficiency and commitment exemplifying quality appropriate to serious criminal cases. This will be judged by a history of participation in criminal continuing legal education programs, membership and activity in professional associations supporting criminal defense practitioners, and reputation among criminal law practitioners.
5.3 Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial and/or appellate experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
a. experience in the trial and/or appeal of death penalty cases which does not meet the levels detailed in paragraphs 1 or 2 above;
b. specialized postgraduate training in the defense of persons accused of capital crimes;
c. the availability of ongoing consultation support from experienced death penalty counsel.
The Chief Counsel is to ensure that any lawyer representing an appointed indigent client will provide competent representation.
New York Court of Appeals, Standards for Appellate Counsel in Capital Cases
Standards for Appellate Counsel in Capital Cases
1. Appellate Qualifications and Experience
(a) Sole Appellate Counsel. To be eligible to be appointed as sole appellate counsel on direct appeal in a capital case, an attorney must demonstrate that he or she:
(1) has at least five years of criminal trial or criminal appellate or postconviction experience, or has at least three years of concentrated criminal litigation experience;
(2) is familiar with the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and
(3) also has had primary responsibility for the appeal of at least five felony convictions in any state or federal court, at least three of which were on behalf of the defendant, and at least three of which were orally argued by the attorney.
(b) Two Appellate Counsel. To be eligible to be appointed as one of two appellate counsel on direct appeal in a capital case:
(1) one attorney must demonstrate that he or she has the qualifications set forth in (a) above.
(2) the second attorney must demonstrate that he or she:
(i) has at least three years of criminal litigation or postconviction experience;
(ii) is familiar with the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and
(iii) has had primary responsibility for the appeal, in any state or federal court, of at least three felony convictions, at least one of which was on behalf of the defendant.
(c) Trial Counsel. If otherwise qualified under these standards, and with the consent of the client, a defendant's capital trial counsel may seek to be appointed capital appellate counsel on the same defendant's appeal.
(d) Waiver. If an attorney cannot meet one or more of the requirements set forth above, the Screening Panel, after consideration of the recommendation of the Capital Defender Office, may waive such requirement by demonstration by the attorney that he or she, by reason of extensive civil litigation and/or appellate experience or other exceptional qualifications, is capable of providing effective representation as appellate counsel in a capital case.
2. Applications to the Capital Defender Officer
(b) Required Submissions. In support of an application, an attorney shall submit to the Capital Defender Office:
(1) at least two briefs, written exclusively or primarily by the applicant, the opposing briefs, and the decisions;
(2) descriptions of any capital or other criminal appellate advocacy or other criminal practice program attended;
(3) the names, addresses and phone numbers of two prosecutors and two defense attorneys, current or former, including at least one appellate adversary, familiar with the applicant's work as an effective advocate;
(4) the applicant may submit the name, address and phone number of one appellate judge, if the judge is familiar with the applicant's work as an effective advocate; and
(5) any other material that may be relevant to fully evaluate the applicant's appellate qualifications and experience.
Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Capital Cases
B. APPELLATE COUNSEL--Attorneys qualifying as court appointed "lead counsel" under Section A(1) automatically qualify as "lead" appellate counsel. Other appointed appellate counsel must meet the following requirements:
1. Be an active member in good standing of the Virginia State Bar or admitted to practice pro hac vice.
2. Have briefed and argued the merits in:
a. At least three criminal cases in appellate court; or
b. The appeal of a case in which the death penalty was imposed.
3. Have had, within the past two years, some specialized training in capital case litigation and be familiar with the rules and procedures of appellate practice.
4. Postconviction Attorney Qualifications/Experience
Commentary. As with the trial and appeal attorney standards, the ABA and NLADA standards serve as the model for state standards. Note that of the nine state standards for trial attorney qualifications, two (Georgia and Indiana) have no standard for postconviction counsel. The sole set of state or local standards that include capital case representation is the Philadelphia General Court Regulation 89-3, Rule 406, "Standards for Appointment of Counsel," and Rule 406-4, "Postconviction Petitions by Prisoners Under Sentence of Death" (1996). The Arizona Supreme Court Rules of Criminal Procedure, Rule 6.8, "Standards for Appointment of Counsel in Capital Cases," sets identical requirements for appellate and postconviction counsel.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 5.1 Attorney Eligibility
III. POSTCONVICTION
A. Assignments to represent indigents in postconviction proceedings in capital cases should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. are experienced and active trial practitioners with at least three years litigation experience in the field of criminal defense; and
iii. have prior experience as counsel in no fewer than five jury or bench trials of serious and complex cases which were tried to completion, as well as prior experience as postconviction counsel in at least three cases in state or federal court. In addition, of the five jury or bench trials which were tried to completion, the attorney should have been counsel in at least three cases in which the charge was murder or aggravated murder; or alternatively, of the five trials, at least one was a murder or aggravated murder trial and an additional three were felony jury trials; and
iv. are familiar with the practice and procedure of the appropriate courts of the jurisdiction; and
v. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the postconviction phase of a criminal case, or alternatively, a program which focused on the trial of cases in which the death penalty is sought; and
vi. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
In addition to the experience level detailed above, it is desirable that at least one of the two postconviction counsel also possesses appellate experience at the level described in II.B. above (relating to appellate co-counsel).
B. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial, appellate and/or postconviction experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
i. Experience in trial, appeal and/or postconviction representation in death penalty cases which does not meet the levels detailed in paragraph A above;
ii. Specialized postgraduate training in the defense of persons accused of capital crimes;
iii. The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent representation.
Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation
1. Qualifications for Appointments
d. Special Considerations in the Appointment of Counsel in Postconviction Proceedings. In appointing postconviction counsel in a case where the defendant is sentenced to death, courts should consider the attorney's experience in federal postconviction proceedings and in capital postconviction proceedings, as well as the general qualifications set forth in paragraph 1(a).
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 5.1 Attorney Eligibility
III. POSTCONVICTION
A. Assignments to represent indigents in postconviction proceedings in capital cases should be distributed to attorneys who:
i. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
ii. are experienced and active trial practitioners with at least three years litigation experience in the field of criminal defense; and
iii. have prior experience as counsel in no fewer than five jury or bench trials of serious and complex cases which were tried to completion, as well as prior experience as postconviction counsel in at least three cases in state or federal court. In addition, of the five jury or bench trials which were tried to completion, the attorney should have been counsel in at least three cases in which the charge was murder or aggravated murder; or alternatively, of the five trials, at least one was a murder or aggravated murder trial and an additional three were felony jury trials; and
iv. are familiar with the practice and procedure of the appropriate courts of the jurisdiction; and
v. have attended and successfully completed, within one year prior to their appointment, a training or educational program on criminal advocacy which focused on the postconviction phase of a criminal case, or alternatively, a program which focused on the trial of cases in which the death penalty is sought; and
vi. have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.
In addition to the experience level detailed above, it is desirable that at least one of the two postconviction counsel also possesses appellate experience at the level described in II.B. above (relating to appellate co-counsel).
B. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial, appellate and/or postconviction experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
i. Experience in trial, appeal and/or postconviction representation in death penalty cases which does not meet the levels detailed in paragraph A above;
ii. Specialized postgraduate training in the defense of persons accused of capital crimes;
iii. The availability of ongoing consultation support from experienced death penalty counsel.
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide competent representation.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
Rule 105-3-2 Eligibility to Serve (a)
(6) Each Attorney assigned or appointed to represent an indigent person who has been convicted of capital murder and who is under a sentence of death in postconviction proceedings shall be prequalified by the board. Each attorney shall be screened by the board to determine the attorney's qualifications to serve as defense counsel to an indigent person who has been convicted of capital murder and who is under a sentence of death in the direct review of the judgment, pursuant to these regulations and "Guideline 5.1(III), Attorney Eligibility," as published in the 1989 version of the American Bar Association (ABA) "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the capital appointments postconviction panel shall be certified by the board.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard III. Operating Policies and Procedures
C. Counsel Eligibility Standards
6. POSTCONVICTION
6.1 Assignments to represent indigents in postconviction proceedings in capital cases for lead and co-counsel assignments should be distributed to attorneys who:
a. are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and
b. are experienced and active trial practitioners with at least five years litigation experience in the field of criminal defense, and five years experience in appellate advocacy; and
c. have prior experience as counsel in no fewer than five jury or bench trials of serious and complex criminal cases of violence which were tried to completion, as well as prior experience as appellate counsel in at least five cases before the Nebraska Supreme Court where the conviction involved a period of incarceration in excess of one year for a serious violent felony and the conviction resulted from a jury trial, and have been counsel in at least two habeas corpus proceedings in federal court. In addition, of the five jury or bench trials which were tried to completion, the attorney should have been counsel or co-counsel in at least two cases in which the charge was first degree murder; or alternatively, of the five trials, at least one was first degree murder and the additional four were serious violent felonies; and
d. are familiar with the practice and procedure of the appropriate courts of the jurisdiction; and
e. demonstrate proficiency and commitment exemplifying quality appropriate to serious criminal cases. This will be judged by a history of participation in criminal continuing legal education programs, membership and activity in professional associations supporting criminal defense practitioners, and reputation among criminal law practitioners.
In addition to the experience level detailed above, it is desirable that at least one of the two postconviction counsel also possesses appellate experience at the level described in the standards above relating to appellate co-counsel.
6.2 Alternate Procedures: Assignments to represent indigents in postconviction proceedings in capital cases for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial, appellate and/or postconviction experience or extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
a. five years prior experience in trial, appeal and/or postconviction representation in death penalty cases which does not meet the levels detailed in paragraph 1 above;
b. five years experience and specialized training in the defense of persons accused of capital crimes;
c. the availability of ongoing consultation support from experienced death penalty counsel for at least five years.
New York Court of Appeals, Standards for Appellate Counsel in Capital Cases
Standards for State Postconviction Counsel in Capital Cases
1. State Postconviction Qualifications and Experience
(a) State Postconviction Counsel. To be eligible to be appointed as lead counsel on an initial motion pursuant to section 440.10 or 440.20 of the Criminal Procedure Law and any appeal therefrom in a capital case, an attorney must demonstrate that he or she:
(1) has at least six years criminal trial, criminal appellate or state or federal postconviction experience, or has at least four years of concentrated criminal or civil litigation experience;
(2) is familiar with:
(i) the practice and procedure of the trial and appellate courts of New York, including the New York Court of Appeals; and
(ii) the practice and procedure of the federal courts with regard to federal habeas corpus petitions;
(3) has conducted twelve trials before judges, arbitration panels or juries to verdict, decision, or hung jury, in serious and complex civil or criminal cases;
(4) has had primary responsibility for the appeal of at least five felony convictions in any state or federal court, at least three of which were on behalf of the defendant, and at least three of which were orally argued by the attorney;
(5) has substantial familiarity with, and extensive experience in the use of, expert witnesses and scientific and medical evidence including, but not limited to, mental health and pathology evidence; and
(6) meets two of the following criteria:
(i) has tried five homicides to verdict or hung jury with at least three as defense counsel;
(ii) has, at the trial level, represented to disposition defendants in eight homicide cases;
(iii) has represented capital defendants in three state or federal postconviction proceedings;
(iv) has brought five motions, pursuant to section 440.10 or 440.20 of the Criminal Procedure Law, where hearings were held and witnesses examined.
(b) Waiver. If an attorney cannot meet one or more of the requirements set forth above, the Screening Panel, after consideration of the recommendation of the Capital Defender Office, may waive such requirement upon demonstration by the attorney that he or she, by reason of extensive criminal or civil litigation, 440 motion practice, appellate and/or postconviction experience or other exceptional qualifications, is capable of providing effective representation as postconviction counsel in a capital case.
2. Applications to Capital Defender Office
(a) Applications. In support of an application, an attorney shall submit to the Capital Defender Office a form prescribed by the Capital Defender Office and approved by the Administrative Board of the Courts. It shall require the attorney to demonstrate that he or she has fully satisfied the requirements set forth above. The attorney shall also identify any requirement that he or she requests be waived, and shall set forth in detail his or her criminal or civil litigation, 440 motion practice, appellate and/or postconviction experience or other exceptional qualifications that justify waiver.
(b) Required Submissions. In support of an application, an attorney shall submit to Capital Defender Office:
(1) a description of a trial or postconviction strategy in a case handled by the attorney and reflective of the attorney's thorough advocacy. This strategy may have, for instance, aimed to achieve a favorable pre-trial disposition or to alter the range of sentencing options;
(2) at least two memoranda of law prepared by the attorney in connection with separate cases;
(3) at least two appellate briefs written exclusively or primarily by the applicant, the opposing briefs, and the decisions;
(4) the names, addresses, and phone numbers of two prosecutors and two defense attorneys, current or former, including at least one adversary, familiar with the applicant's work as an effective advocate;
(5) the applicant may submit the name, address and phone number of one judge, if the judge is familiar with the applicant's work as an effective advocate;
(6) a description of specialized trial, appellate or postconviction capital defense training programs regularly attended; and
(7) any other material that may be relevant to fully evaluate the applicant's qualifications and experience.
Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Virginia Cases
Standard C. Habeas Corpus Counsel
1. Habeas Corpus "Lead Counsel" must satisfy one of the following requirements:
a. Be qualified as "lead counsel" pursuant to Section A(1) and possess familiarity with Virginia as well as federal habeas corpus practice.
b. Possess experience as counsel of record in Virginia or federal postconviction proceedings involving attacks on the validity of one or more felony convictions as well as a working knowledge of state and federal habeas corpus practice through specialized training in the representation of persons with death sentences.
2. Habeas Corpus "Co-Counsel" must satisfy one of the following requirements:
a. Service as lead or co-counsel in at least one capital habeas corpus proceeding in Virginia and/or federal courts during the last three (3) years;
b. Have at least (7) years of civil trial and appellate litigation experience in the Courts of Record of the Commonwealth and/or federal courts.
5. Monitoring of Performance and Removal from Roster
Commentary. Both the ABA and NLADA standards call for monitoring attorney performance for purposes of future appointments and removal. The NLADA standards add some additional material to emphasize that monitoring is not to interfere with the existing case appointment and implies that case removal be sought only where the client has no objections. Of the eight states that follow the ABA and NLADA standards in some form for attorney qualifications, only Louisiana provides for attorney monitoring. The New York Court of Appeals Standards simply provide for the exercise of the removal power as a function of the court. See also, Arkansas Public Defender Commission Minimum Standards, Attorney Qualifications Certification Criteria, "Removal from Certification Lists for Cause" (1997); Second Judicial Circuit of Florida, Conflict Attorney Policies, Policy (IV), "Terms of Appointment, (B) Performance Review Committee and (C) Periodic Evaluation, (i) Evaluation Forms and (v) Removal from Conflict List"; and Eleventh Judicial Circuit of Florida, Circuit Conflict Committee, Policies and Procedures, "Policy: Decertification and Other Sanctions" (1982) (not limited to capital cases).
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 7.1 Monitoring; Removal
A. The appointing authority should monitor the performance of assigned counsel to ensure that the client is receiving quality representation. Where there is compelling evidence that an attorney has inexcusably ignored basic responsibilities of an effective lawyer, resulting in prejudice to the client's case, the attorney should not receive additional appointments. Where there is compelling evidence that an unalterable systemic defect in a defender office has caused a default in the basic responsibilities of an effective lawyer, resulting in prejudice to a client's case, the office should not receive additional appointments. The appointing authority shall establish a procedure which gives written notice to counsel or a defender office whose removal is being sought, and an opportunity for counsel or the defender office to respond in writing.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 7.1 Monitoring; Removal
(a) The appointing authority should monitor the performance of assigned counsel to ensure that the client is receiving quality representation. Where there is compelling evidence that an attorney has inexcusably ignored basic responsibilities of an effective lawyer, resulting in prejudice to the client's case, the attorney should not receive additional appointments. Where there is compelling evidence that an unalterable systemic defect in a defender office has caused a default in the basic responsibilities of an effective lawyer, resulting in prejudice to a client's case, the office should not receive additional appointments. The appointing authority shall establish a procedure which gives written notice to counsel or a defender office whose removal is being sought, and an opportunity for counsel or the defender office to respond in writing.
(b) In fulfilling its monitoring function, however, the appointing authority should not attempt to interfere with the conduct of particular cases. Representation of an accused establishes an inviolable attorney-client relationship. In the context of a particular case, removal of counsel from representation should not occur over the objection of the client.
(c) No attorney or defender office should be readmitted to the appointment roster after removal under (a) above unless such removal is shown to have been erroneous or it is established by clear and convincing evidence that the cause of the failure to meet basic responsibilities has been identified and corrected.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part VII. Monitoring; Removal. Attorneys certified within the guidelines of this Chapter shall be monitored to ensure eligibility.
Standard 7-7.1. Status and Training Criteria. An attorney who fails to maintain his or her status and educational requirements as defined in Part I of this Chapter shall not be considered certified for purposes of appointment in capital cases. An attorney may seek recertification once the criteria of Part I are satisfied.
Standard 7-7.2. Ineffectiveness. Where there is compelling evidence that an attorney has inexcusably ignored basic responsibilities of an effective lawyer, resulting in prejudice to an indigent client's case, the attorney shall not be considered certified for purposes of appointment in capital cases. In this instance, an attorney shall be given an opportunity to respond in writing to specific charges of ineffectiveness.
Standard 7-7.3. Review of Active Representation. Representation of an accused establishes an inviolable attorney-client relationship. Thus, an attorney's eligibility to represent an indigent client may not be reviewed, except by a court of proper jurisdiction, on the basis of conduct involving a case in which the attorney is presently actively representing the indigent client.
Standard 7-7.4. Recertification. An attorney decertified under Standard 7-7.2 shall not be recertified unless the decertification is shown to have been erroneous or it is established by clear and convincing evidence that the cause of the failure to meet basic responsibilities has been identified and corrected.
New York Court of Appeals, Standards for Appellate Counsel in Capital Cases
6. Retention and Eligibility
(b) Removal from the Court of Appeals Roster. The Court of Appeals may remove from its roster of attorneys any attorney who, in the Court's judgment, has not provided competent, thorough representation.
6. Requirement for Training
Commentary. The ABA and NLADA standards for attorney qualifications include a training requirement. The NLADA version is represented here, as is the ABA's additional standard on training.
The Louisiana standards for training are also reprinted here from the trial attorney qualifications along with a standard for maintaining training. Also included here are the federal and New York Court of Appeals standards.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 9.1 Training
Attorneys seeking eligibility to receive appointments pursuant to these Guidelines should have completed the training requirements specified in Guideline 5.1. Attorneys seeking to remain on the roster of attorneys from which assignments are made should continue, on a periodic basis, to attend and successfully complete training or educational programs which focus on advocacy in death penalty cases. The legal representation plan for each jurisdiction should include sufficient funding to enable adequate and frequent training programs to be conducted for counsel in capital cases and counsel who wish to be placed on the roster.
Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation
8. Training
Federal Death Penalty Training Programs. The Administrative Office should continue to offer and expand training programs designed specifically for defense counsel in federal death penalty cases.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 5.1 Attorney Eligibility
The appointing authority should distribute assignments in capital cases to attorneys who possess the following qualifications:
I. TRIAL
A. Lead trial counsel assignments should be distributed to attorneys who:
(vi) have attended and successfully completed, within one year of their appointment, a training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought;
B. Trial co-counsel assignments should be distributed to attorneys who:
d. have completed within one year of their appointment at least one training or educational program on criminal advocacy which focused on the trial of cases in which the death penalty is sought
C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be distributed to persons with extensive criminal trial experience or extensive civil litigation experience, if it is clearly demonstrated to the appointing authority that competent representation will be provided to the capitally charged indigent defendant. Lawyers appointed under this paragraph shall meet one or more of the following qualifications:
ii. Specialized postgraduate training in the defense of persons accused of capital crimes
Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide competent representation.
Standard 9.1 Training
Attorneys seeking eligibility to receive appointments pursuant to these Standards should have completed the training requirements specified in Standard 5.1. Attorneys seeking to remain on the roster of attorneys from which assignments are made should continue, on a periodic basis to attend and successfully complete training or educational programs which focus on advocacy in death penalty cases. The legal representation plan for each jurisdiction should include sufficient funding to enable adequate and frequent training programs to be conducted for counsel in capital cases and counsel who wish to be placed on the roster.
NLADA Defender Training and Development Standards
Standard 7.1 Death Penalty Defense
Defender organizations should provide employees responsible for the representation of death penalty clients with all training necessary for high quality service to the client at every stage of the process: pretrial, trial, penalty phase, appeal and postconviction.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part I. General Principles of Certification Eligibility. The following standards shall be applied to attorney certification under any part of this chapter:
Standard 7-1.3. Initial Training. Within one year of an initial application for certification under the standards of this Chapter, the attorney shall complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Standard 7-1.4. Continuing Training. To maintain certification, counsel shall, every two years from the date of certification, successfully complete a minimum of 12 hours of Board-approved training primarily involving advocacy in the field of capital defense.
Standard 7-7.1. Status and Training Criteria. An attorney who fails to maintain his or her status and educational requirements as defined in Part I of this Chapter shall not be considered certified for purposes of appointment in capital cases. An attorney may seek recertification once the criteria of Part I are satisfied.
New York Court of Appeals, Standards for Appellate Counsel in Capital Cases
5. Training
(a) Certification. An Attorney shall not be eligible to be appointed as postconviction counsel in a capital case unless the Capital Defender Office shall certify that the attorney satisfactorily has completed a capital postconviction course prescribed by the Capital Defender Office and approved by the Administrative Board of the Courts.
(b) Interim Certification. The Screening Panel, or the Court of Appeals, in its discretion, may permit an attorney to be eligible for such appointment if the attorney meets all of the other requirements for qualification and experience, and the Capital Defender Office confirms that such attorney is in active pursuit of such training and certification.
6. Retention and Eligibility
(a) On-Going Training. To remain eligible for appointment as counsel, an attorney must attend and successfully complete capital training sessions as prescribed by the Capital Defender Office.