Chapter 6, § 620: Appointment of Counsel in Capital Cases

§ 620.10 Number of Counsel
§ 620.15 Notification of Relationship
§ 620.20 Appointment of State Public Defenders or Legal Aid Attorneys
§ 620.30 Procedures for Appointment of Counsel in Federal Death Penalty Cases
§ 620.40 Federal Death Penalty Cases: Special Considerations in the Appointment of Counsel on Appeal
§ 620.50 Federal Death Penalty Cases: Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings
§ 620.60 Attorney Qualification Requirements Under 18 U.S.C. § 3599 in Federal Death Penalty Cases and Habeas Corpus Proceedings
§ 620.70 Continuity of Representation

§ 620 Appointment of Counsel in Capital Cases

§ 620.10 Number of Counsel

§ 620.10.10 Federal Death Penalty Cases

(a) As required by 18 U.S.C. § 3005, at the outset of every capital case, courts should appoint two attorneys, at least one of whom is experienced in and knowledgeable about the defense of death penalty cases.

(b) Under 18 U.S.C. § 3599(a)(1), if necessary for adequate representation, more than two attorneys may be appointed to represent a defendant in a capital case.

(c) While courts should not appoint more than two attorneys unless exceptional circumstances and good cause are shown, 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.

§ 620.10.20 Habeas Corpus Proceedings

(a) Under 18 U.S.C. § 3599(a)(2), 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.

(b) Due to the complex, demanding, and protracted nature of death penalty proceedings, judicial officers should consider appointing at least two attorneys.

§ 620.15 Notification of Relationship

Prior to appointment, counsel should notify the presiding judicial authority if counsel is aware that he or she is related (as the term is defined in 5 U.S.C. § 3110) to any attorney on the same representation, or any attorney being considered for appointment. If appointment of related counsel is made prior to notification, counsel should provide notification as soon as practicable.

§ 620.20 Appointment of State Public Defenders or Legal Aid Attorneys

(a) The judicial officer may appoint an attorney, if qualified under Guide, Vol 7A, § 620.60, who is furnished by a state or local public defender organization or by a legal aid agency or other private, non-profit organization to represent a person charged with a capital crime or seeking federal death penalty habeas corpus relief.

(b) Such appointments may be in place of, or in addition to, the appointment of a federal defender organization or a CJA panel attorney or an attorney appointed pro hac vice according to Guide, Vol 7A, § 210.30.

(c) Such appointments should be made when the court determines that they will provide the most effective representation. In making this determination, the court should take into consideration whether the attorney represented the person during prior state court proceedings.

§ 620.30 Procedures for Appointment of Counsel in Federal Death Penalty Cases

(a) Recommendations for Appointment of Qualified Counsel

          (1) In appointing counsel in federal death penalty cases, 18 U.S.C. § 3005 requires the court to consider the recommendation of the federal defender, or, if no such organization exists in the district, of the AO's Defender Services Office.  Judges should consider and give due weight to the recommendations made by federal defenders and resource counsel and articulate reasons for not doing so.  See:  JCUS-MAR 2019, pp. 18-20.

          (2) In fulfilling this responsibility, the federal defender organization or AO's Defender Services Office should consult with counsel (if counsel has already been appointed or retained) and the court regarding the facts and circumstances of the case to determine the qualifications which may be required to provide effective representation.

(b) Evaluating the Qualifications of Counsel Considered for Appointment

          (1) Courts should ensure that all attorneys appointed in federal death penalty cases are well qualified, by virtue of their prior defense experience, training, and commitment, to serve as counsel in this highly specialized and demanding litigation.

          (2) Ordinarily, “learned counsel” (see:  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.

          (3) In evaluating the qualifications of counsel considered for appointment, the federal defender organization or AO's Defender Services Office should consider the:

          (A) minimum experience standards in 18 U.S.C. § 3599(b)-(d), 18 U.S.C. § 3005, and other applicable laws or rules;

          (B) qualification standards endorsed by bar associations and other legal organizations regarding the quality of legal representation in capital cases;

          (C) recommendations of other federal public and community defender organizations, and local and national criminal defense organizations;

          (D) proposed counsel's commitment to the defense of capital cases; and

          (E) availability and willingness of proposed counsel to accept the appointment and to represent effectively the interests of the client.

§ 620.40 Federal Death Penalty Cases: Special Considerations in the Appointment of Counsel on Appeal

(a) In appointing counsel in capital cases, judges should consider and give due weight to the recommendations by federal defenders and resource counsel and articulate reasons for not doing so.  See:  JCUS-MAR 2019, pp. 18-20.

(b) Ordinarily, the attorneys appointed to represent a death-sentenced federal appellant should include at least one attorney who did not represent the appellant at trial.  In appointing counsel, the court should, among other relevant factors, consider the:

          (1) attorney’s experience in federal criminal appeals and capital appeals;

          (2) general qualifications identified in § 620.30; and

          (3) attorney’s willingness, unless relieved, to serve as counsel in any post-conviction proceedings that may follow the appeal.

§ 620.50 Federal Death Penalty Cases: Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings

(a) In appointing counsel in capital cases, judges should consider and give due weight to the recommendations by federal defenders and resource counsel and articulate reasons for not doing so.  See:  JCUS-MAR 2019, pp. 18-20.

(b) 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 § 620.30 and § 620.60.20.

§ 620.60 Attorney Qualification Requirements Under 18 U.S.C. § 3599 in Federal Death Penalty Cases and Habeas Corpus Proceedings

§ 620.60.10 Appointment of Counsel Before Judgment

Under 18 U.S.C. § 3599(b), at least one of the attorneys appointed must have been admitted to practice in the court in which the case will be prosecuted for not less than five years, and must have had not less than three years' experience in the actual trial of felony prosecutions in that court. Under 18 U.S.C. § 3005, at least one of the attorneys appointed must be knowledgeable in the law applicable to capital cases.

§ 620.60.20 Appointment of Counsel After Judgment

Under 18 U.S.C. § 3599(c), at least one of the attorneys appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years' experience in the handling of appeals in felony cases in the court.

§ 620.60.30 Attorney 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.

§ 620.70 Continuity of Representation

(a) In the interest of justice and judicial and fiscal economy, unless precluded by a conflict of interest, presiding judicial officers are urged to continue the appointment of state post-conviction counsel, if qualified under Guide, Vol 7A, § 620.60, when the case enters the federal system.

(b) Under 18 U.S.C. § 3599(e), unless replaced by an attorney similarly qualified under Guide, Vol 7A, § 620.60 by counsel's own motion or upon motion of the defendant, counsel "shall represent the defendant throughout every subsequent stage of available judicial proceedings,"

• pretrial proceedings;
• trial;
• sentencing;
• motion for a new trial;
• appeals;
• applications for writ of certiorari to the Supreme Court of the United States;
• all post-conviction processes;
• applications for stays of execution and other appropriate motions and procedures;
• competency proceedings; and
• proceedings for executive or other clemency.

Chapter Appendices

Appx 6A Recommendations Concerning the Cost and Quality of Defense Representation (Updated Spencer Report, September 2010) (pdf)

Last revised (Transmittal 07-014) January 5, 2022
Last revised (minor technical changes) January 2, 2024