Federal Judicial Center -- 2004
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        A.    Appointment of Counsel
        A-1  Number of counsel
        A-2  Finding qualified counsel
        A-3  Timing of appointment
        A-4  Disputes between counsel and defendants
        A-5  Replacing or supplementing retained counsel

Few capital defendants are able to afford retained counsel or to pay for the full cost of their representation even if they can initially afford to retain an attorney. Thus, a judge with a death-penalty-eligible case will generally find it necessary to appoint counsel for the defendant. The Spencer Committee Report, mentioned previously, provides much useful information relating to appointment and compensation of counsel.

A-1    Number of counsel

Both the Anti-Drug Abuse Act of 1988 and the Federal Death Penalty Act of 1994 provide for the appointment of counsel in capital cases, and both provide for more than one attorney to be appointed.

Specifically, 18 USC 3005, as amended by section 60026 of the Federal Death Penalty Act of 1994, provides as follows:

Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant’s request, assign two such counsel, of whom at least one shall be learned in the law applicable to capital cases . . . . (emphasis added).

Similarly, 21 USC 848(q)(4)(A) states the following:

Notwithstanding any other provision of law to the contrary, in every criminal action in

which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation . . . shall be entitled to the appointment of one or more attorneys . . . .

Thus, both statutes clearly authorize a court to appoint two attorneys for an indigent capital defendant.

The Judicial Conference of the United States sets policy regarding how much money individual judges can authorize to be spent for the court-funded defense of a death-penalty case. Judicial Conference policy recognizes that appointing more than two attorneys may be appropriate in some cases. Additional counsel may be warranted, for example, in a complex, multicount, multidefendant case, or in a case involving novel legal issues or requiring extensive discovery and investigation.

The general practice, however, has been to appoint two counsel. The Judicial Conference, in agreement with the Spencer Committee, recommends that a court appoint more than two counsel only when "exceptional circumstances and good cause are shown," but further provides that appointed counsel may, with prior court authorization, use the services of other lawyers if this "diminishes the total cost of representation or is required to meet time limits." Admin. Office of the U.S. Courts, 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.0.1(A)(1) [hereinafter Guide to Judiciary Policies and Procedures].

Similarly, Judicial Conference policy authorizes appointed counsel’s use of "light consultation" services from attorneys who are expert in certain areas related to death penalty cases. Id. at ch. VI, para. 6.03(C). The expert attorneys hired for this purpose shall not be paid a higher hourly rate than appointed counsel. Id.

A-2    Finding qualified counsel

a. Resources. A judge seeking to appoint counsel in a death-penalty case is required by statute to consider the recommendation of the federal public defender in the judge’s district or, if there is none, the recommendation of the Administrative Office of the U.S. Courts. 18 USC 3005. The Judicial Conference further recommends considering the following factors in determining the qualifications of counsel for appointment:

• the minimum standards set forth in the relevant statutes (discussed above);

• the qualification standards endorsed by bar associations and other legal organizations regarding the quality of legal representation in capital cases;

• the recommendations of other federal public defender and community defender organizations, and of local and national criminal defense organizations;

• the proposed counsel’s commitment to the defense of capital cases; and

• the availability and willingness of proposed counsel to accept the appointment and to represent the interests of the client.

7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.01(B)(1)(a)–(e).

The extensive consultation endorsed by the Judicial Conference should be very useful to judges in death-penalty cases. Judges we interviewed—most of whose cases predated the statutory consultation requirement—emphasized the difficulty of finding competent counsel, particularly if they sat in states that did not have the death penalty.

Federal Death Penalty Resource Counsel (FDPRC), under an arrangement with the Defender Services Division of the Administrative Office, are available to assist federal judges in identifying qualified counsel to appoint. FDPRC, upon request, canvass organizations and individuals in the jurisdiction to identify qualified counsel, conduct telephone interviews, and check with qualified counsel to determine if they are available to handle the appointment. One resource counsel explained that "judges get a pretty frank assessment [from us] of [available] lawyers." The appendices provide the names of attorneys and contact information for Federal Death Penalty Resource Counsel.

b. Qualifications of counsel. To help ensure that capital defendants receive adequate representation, 18 USC 3005, as amended by section 60026 of the Federal Death Penalty Act of 1994, states that at least one counsel representing a defendant in a capital case should be "learned in the law applicable to capital cases." In addition, 21 USC 848(q)(5) provides that at least one attorney appointed in a death-penalty case before judgment "must have been admitted to practice in the court in which the prosecution is to be tried for not less than five years, and must have had not less than three years experience in the actual trial of felony prosecutions in that court."

Judicial Conference policy regarding funding of court-appointed attorneys provides that, to meet the "learned counsel" requirement, a judge should appoint at least one attorney who has "distinguished prior experience" in the trial, appeal, or post conviction review of federal or state death-penalty cases, even if this means appointing an attorney from outside the district in which the case arises. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.01(B)(1). In its report, the Spencer Committee pointed out that the knowledge, skills, and experience necessary for effective representation in capital cases are often lacking even in seasoned felony trial lawyers who do not have capital-case experience. In cases in which attorneys with experience in both federal criminal practice and capital cases could not be found, some courts appointed one attorney with federal criminal practice experience and another with experience in state capital cases, hoping to combine their strengths to represent the defendant. Spencer Committee Report at 27.

All the judges we interviewed acknowledged the importance of competent or learned counsel and the critical role they play in death-penalty litigation. As a result, although many of their cases predated the "learned counsel" requirement of section 3005, the judges routinely sought and appointed at least one attorney with experience in trying capital cases. For example, one judge sought counsel who had tried a capital case to verdict in the sentencing phase.

As noted previously, some of the judges we interviewed sat in judicial districts located in states without the death penalty. These judges generally had more difficulty securing experienced counsel and found it necessary to go outside their districts to appoint counsel from states with the death penalty. For example, one judge who was unable to find qualified counsel to represent one of his capital defendants in either Michigan (where he sat) or a neighboring state obtained the recommendation of the chief federal defender for the Eastern District of Michigan and appointed attorneys from Illinois, Indiana, and Georgia who met the requirements of 21 USC 848(q)(5) and 18 USC 3005.

The Spencer Committee Report notes that the costs of appointing outside counsel can be minimized with careful planning. For example, "investigations, client counseling, court appearances, and other obligations can be coordinated to maximize the efficient use of counsel’s time and ensure cost-effectiveness." Id. at 42.

The appendices to this guide include examples of orders appointing counsel, including out-of-state counsel. For information on compensation of counsel, see infra section II.D.1.

c. Appointment of a federal defender organization. Few judges have appointed a federal defender organization (FDO) as counsel in federal death-penalty cases. Not only do few attorneys in federal defender organizations have relevant capital-case experience, but also these attorneys are often precluded from serving on death-penalty cases because of conflicts of interest arising from their previous representation of a codefendant or witness in the case. Id. at 31 n.48. In addition, the Spencer Committee found that, in capital cases in which an FDO was appointed, the time commitment involved was disruptive to the entire office. Id. at 32.

In cases in which an FDO has been appointed, an attorney from that office has almost always served as cocounsel with a non-FDO attorney who has death-penalty experience. Id. at 32.

A-3    Timing of appointment

Although a judge will most likely know at the outset of a case whether it is potentially a death-penalty case, the government’s decision about whether to seek the death penalty in an eligible case might not be made until the litigation is already under way. However, 18 USC 3005 requires that appointment of counsel be made "promptly" in a capital case, and Judicial Conference policy endorses appointment of counsel qualified to handle death-penalty cases at the outset. 7 Guide to Judiciary Policies and Procedures, ch. VI, para. 6.01(A). On October 9, 2002, the First Circuit granted mandamus in a death penalty case to compel early appointment of counsel learned in the law applicable to capital cases. The court held that the phrase "promptly" in § 3005 means "promptly after indictment, not . . . only after the Attorney General has made a determination to seek the death penalty." In re Sterling-Suarez, 306 F.3d 1170 (1st Cir. 2002).

Judges we interviewed generally appointed death-penalty counsel promptly and cited reasons for doing so. First, as discussed earlier, virtually all aspects of the defense of a federal death-penalty case are affected by the potential for a penalty phase. For example, the scope of the defendant’s investigation to prepare for the penalty phase is extremely broad and time-consuming, and must be started long before the penalty phase actually begins. Second, under Department of Justice policy, defense counsel has an opportunity to present information to the local U.S. attorney and the Department of Justice before the government makes its decision about whether to pursue the death penalty. Attorneys experienced with death-penalty litigation will be in a better position to argue their client’s position in these presentations. In one case, a federal district judge ruled that defendants who are eligible for the death penalty have a constitutional right to counsel during the hearing before the Justice Department. United States v. Pena-Gonzalez, 62 F. Supp. 2d 358 (D.P.R. 1999).

A-4    Disputes between counsel and defendants

Because of the serious nature of capital cases and the number of emotionally sensitive issues that may arise, a judge will often receive complaints from a defendant regarding his or her attorney’s handling of the case. Some of these complaints may arise from the defendant’s perception of or the actual lack of communication between counsel and defendant. In one case we reviewed, a complaint arose because the defendant and the attorney were of different races and found that this created difficulties. In other instances, a defendant may not approve of his or her attorney’s strategy, such as whether to consider an offer to plead guilty, which generally translates into life imprisonment without the possibility of parole. Judges recommended that complaints from defendants be taken seriously and addressed expeditiously. One judge commented that "you don’t want to find yourself in a situation where the defendant decides to seek new counsel or represent himself pro se."

A-5.    Replacing or supplementing retained counsel

In some instances, a court may find it necessary to replace or supplement retained counsel, especially in cases in which the attorney is inexperienced or has a conflict of interest, [Footnote 7] or the defendant becomes unable to continue to pay for representation. 21 USC 848(q)(4). For example, if retained counsel is not experienced in capital cases, the court will most likely need to appoint additional or different counsel to meet the statutory requirement that at least one attorney representing the defendant be "learned in the law applicable to capital cases." 18 USC 3005.

In several of the cases we reviewed, retained defense counsel petitioned the court to be appointed under the Criminal Justice Act because the defendant had run out of money and the case had been formally designated as a death-penalty case by the government’s filing of a notice of intent. Judges we interviewed noted that they do not normally appoint counsel who were originally retained by the defendant, but said they made an exception in capital cases because of the time involved and because the case was not definitively designated as one in which the government would seek the death penalty until the litigation was well under way. The appendices present examples of orders appointing attorneys who were originally retained by defendants.

FOOTNOTES:

7     In one case we reviewed, the government asked the court to remove one defendant’s retained attorney because that attorney had disclosed to the other codefendants information on the identities of government informants.