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, at least 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. Judicial Conference policy has recently reinforced and expanded the role of the federal defender and of Resource Counsel in this task, providing that “[i]n appointing counsel in capital cases, judges should consider and give due weight to the recommendations made by federal defenders and resource counsel and articulate reasons for not doing so.” Guide to Judiciary Policy, Vol. 7A, Appx. 2A

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 Guide to Judiciary Policy, Volume 7A, § 620 (Appointment of Counsel in Capital Cases).    

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. Judicial Conference policy makes clear that “[q]ualified counsel must be appointed in capital cases at the earliest possible opportunity.” Guide to Judiciary Policy, Vol. 7A, Appx. 2A

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. See, Guide to Judiciary Policy, Vol. 7A, Appx. 2A ("All attorneys appointed in federal capital cases should consult regularly with the appropriate Resource Counsel projects.")