The capital case coordinator automatically appoints the attorneys who represented the defendant in the district court to continue that representation on appeal unless district court counsel does not meet the qualification requirements for capital representation on appeal, district court counsel has moved for leave to withdraw, or new counsel is needed on direct appeal of a federal capital conviction. Any new attorney appointed in a capital appeal is selected from the court's Capital Panel, in accordance with the provisions of the CJA Panel Plan.
Qualifications for the Fourth Circuit Capital Panel are set forth in the CJA Panel Plan, which establishes a Capital Panel composed of first-chair and second-chair counsel lists. The CJA Panel Plan implements the recommendation in Fourth Circuit Council Order 113 (Death Penalty Representation) that "the circuit court solicit the bar for applications, maintain lists of those attorneys qualified to represent capital defendants as lead counsel and as second-chair counsel, and identify attorneys' expertise in appellate and habeas representation." Membership on the Capital Appellate Panel is open to attorneys from outside the circuit.
First-chair counsel must have been a Fourth Circuit bar member for at least five years and have at least three years experience in the handling of felony appeals in the Fourth Circuit. See 18 U.S.C. § 3599(c).
Qualification requirements for second-chair counsel are the same as for CJA Panel members (member in good standing of the Fourth Circuit bar with demonstrated experience in, and knowledge of, federal criminal law and appellate procedure and the Sentencing Guidelines). CJA Panel Plan, ¶ 1.A.2.
Attorneys interested in joining the Capital Panel should complete the capital panel portion of the CJA Panel Application and indicate whether they are applying to the first-chair or second-chair list. The CJA Panel application period runs from June 1 to September 1 each year.
Applications are reviewed by a CJA Panel Committee, consisting of a circuit judge, a federal defender, at least one attorney from each district within the circuit, the circuit executive, the clerk, and the senior staff attorney. The committee makes its final recommendations to the court of appeals each fall after completing its review of the applications.
There is no fixed appointment term for the Capital Panel; membership continues until terminated by the attorney or the court.
Appointments are made after appropriate consultation with the Federal Public or Community Defender or the Administrative Office of the United States Courts,
in accordance with 18 U.S.C. § 3005 and the Guidelines for Representation in Federal Death Penalty Cases and Federal Habeas Corpus Proceedings, Volume 7, Chapter VI, Guide to Judiciary Policies and Procedures. Second-chair counsel is appointed after consultation with first-chair counsel. CJA Panel Plan ¶ III.B.2.
Federal Capital Cases
Learned counsel appointed in federal capital cases under 18 U.S.C. § 3005 "should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure high-quality representation." 7 Guide to Judiciary Policy § 620.30. Under 18 U.S.C. § 3005, the court must consider the recommendation of the federal defender or the AO Office of Defender Services who, in turn, consults with existing counsel and considers the following factors under 7 Guide to Judiciary Policy § 620.30:
(1) minimum experience standards set forth in 18 U.S.C. § 3599(b)-(d), 18 U.S.C. § 3005, and other applicable laws or rules;
(2) qualification standards endorsed by bar associations and other legal organizations regarding the quality of legal representation in capital cases;
(3) recommendations of other federal public and community defender organizations, and local and national criminal defense organizations;
(4) proposed counsel's commitment to the defense of capital cases; and
(5) availability and willingness of proposed counsel to accept the appointment and to represent effectively the interests of the client.
State Habeas Corpus Appeals
In appointing post-conviction counsel in a case where the defendant is sentenced to death, courts should consider the attorney's experience in federal post-conviction proceedings and in capital post-conviction proceedings, as well as the general qualifications identified in 7 Guide to Judiciary Policy §§ 620.30 and 620.60.20.