Capital Appointments

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 appointed in accordance with 7 Guide to Judiciary Policy § 620.

A financially eligible defendant indicted for a capital crime is entitled, upon request, under 18 U.S.C. § 3005 to appointment of two attorneys, at least one of whom shall be learned in the law applicable to capital cases, 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.

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.

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. 

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.

If counsel from the district court is granted leave to withdraw, the court of appeals will appoint substitute counsel in accordance with the policies and procedures in 7 Guide to Judiciary Policy § 620

Federal Public Defenders may be appointed to represent individuals charged with federal capital crimes and or on collateral attacks of federal capital convictions and sentences.  Federal Public Defender Capital Habeas Units may be appointed to represent criminal defendants petitioning pursuant to 28 U.S.C. § 2254 fro relief from a state death sentence.  Judicial Council Order 367 (repealing Judicial Council Order 113).

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.