Capital Appointments

  • Number of Attorneys

    A financially eligible defendant indicted for a capital crime is entitled under 18 U.S.C. § 3005 to appointment of two attorneys, even if the government is not seeking the death penalty. United States v. Boone, 245 F.3d 352 (4th Cir. 2001).

    A financially eligible person seeking to vacate or set aside a death sentence in proceedings under 28 U.S.C. § 2254 or § 2255 is entitled to appointment of one or more qualified attorneys. 18 U.S.C. § 3599(a)(2). Due to the complex, demanding, and protracted nature of death penalty proceedings, judicial officers should consider appointing at least two attorneys. 7 Guide to Judiciary Policy § 620.10.20.

    In addition, appointed counsel may, with prior court authorization, use the services of attorneys who work in association with them, provided that the employment of such additional counsel (at a reduced hourly rate) diminishes the total cost of representation or is required to meet time limits. 7 Guide to Judiciary Policy § 620.10.20.

  • Waiver of Qualification Requirements

    If neither of the attorneys who represented the appellant in the district court meets the statutory qualifications for appellate representation, they may seek to continue their representation on appeal by filing for qualification waiver. Fourth Circuit Council Order 113 (Death Penalty Representation), ¶ II.A.

    Under 18 U.S.C. § 3599(d), the presiding judicial officer, for good cause, may appoint an attorney who may not qualify under 18 U.S.C. § 3599(b) or (c), but who has the background, knowledge, and experience necessary to represent the defendant properly in a capital case, giving due consideration to the seriousness of the possible penalty and the unique and complex nature of the litigation. A waiver may be used to continue representation by qualified counsel who does not meet the technical statutory requirements for representation at a subsequent stage of the proceeding.

  • Substitution of Counsel

    If counsel from the district court is granted leave to withdraw, the court of appeals will appoint substitute counsel from its Capital Panel.
  • Recommendations & Commentary Concerning the Cost and Quality of Defense Representation (Updated Spencer Report, September 2010)

    Judicial Conference recommendations on appointment and compensation of counsel in federal death penalty cases (adopted in 1998 with updated commentary in 2010) are reported in 7 Guide to Judiciary Policy Appx. 6A.