Appointment of Counsel & Role of Federal Defender

A person indicted in federal court for any death-eligible offense is entitled to appointment of two attorneys, one of whom must be “learned in the law applicable to capital cases.” 18 U.S.C. § 3005.  Judicial Conference policy is that “[o]rdinarily, ‘learned counsel’ 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.” Recommendation 1(b), Subcommittee on Federal Death Penalty Cases, Committee on Defender Services Judicial Conference of the United States, Federal Death Penalty Cases:  Recommendations Concerning The Cost And Quality of Defense (approved September 15, 1998).   More than two attorneys can be appointed to represent a defendant in a capital case.  18 U.S.C. § 3599(a).   Additionally, federal law provides a role for the federal defender in the recruitment of qualified counsel, and instructs the court to “consider the recommendation of the Federal Public Defender organization . . . .” 18 U.S.C. § 3005.

In addition to the “learned counsel” requirement of §  3005, minimum experience standards for attorneys appointed in capital cases are set forth in 18 U.S.C. § 3599(a)-(d).   Procedures for appointment of counsel and attorney qualification requirements are further detailed in Volume 7, Chapter VI, section 6.01 of the Guide to Judiciary Policies and Procedures.   

Highly skilled and experienced counsel is critical at every stage of a federal death penalty proceeding, and it is important from the outset of a case that death-qualified counsel be appointed to provide representation to defendants charged with a capital crime. Attorneys faced with the possibility of appointment to a death-eligible case are urged to  consult with  their local  Federal Defender Office and the Federal Death Penalty Resource Counsel Project for resources and legal support.