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Rule 44.3 – Standards for the Qualification of Appointed Counsel in Capital Cases

May 11, 2021 | Civil Procedure, Idaho

(a) Applicability. The provisions for the appointment of counsel in this rule apply only in cases where the defendant is needy, as defined in Idaho Code § 19-851 et seq., counsel is not privately retained by or for the defendant, and the death penalty may be or has been imposed on the defendant.
(b) Number of Attorneys Per Case.

(1) In a case in which the death penalty may be imposed:

(A) At the initial appearance in the magistrate division, two qualified trial attorneys must be appointed to represent an indigent defendant, unless the administrative district judge or designee makes specific findings that two attorneys are not necessary.
(B) In the district court on an indictment, two qualified trial attorneys must be appointed to represent an indigent defendant, unless the administrative district judge or the assigned district judge makes specific findings that two attorneys are not necessary.
(C) In the event that more than one attorney is appointed, one appointed attorney must be designated “lead counsel” and the second as “co-counsel.”
(2) In a case in which the death penalty has been imposed:

(A) The district judge who sentenced the defendant must comply with Rule 44.2.
(B) In the event that more than one attorney is appointed, one appointed attorney must be designated “lead counsel” and the second as “co-counsel.”
(c) Attorney Qualifications.

(1)Trial.

(A) Lead trial counsel assignments must be made to attorneys who:

(i) are members in good standing of the Idaho State Bar, admitted to practice in Idaho or admitted to practice pro hac vice;
(ii) are experienced and active trial practitioners with at least five years’ iitigation experience in criminal defense or prosecution;
(iii) have served as lead counsel in no fewer than four felony jury trials of cases that were tried to completion and have served either as lead or co-counsel in one case in which the death penalty might have been imposed and which was tried through to completion, or served as lead counsel in the sentencing phase of a death penalty case;
(iv) are familiar with the rules, practice and procedure of the district courts of the state of Idaho;
(v) are familiar with and experienced in the utilization of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence;
(vi) have attended and successfully completed at least 12 hours of Idaho State Bar approved training or educational programs focusing on capital cases, within the last two years; and
(vii) have demonstrated the proficiency and commitment necessary for the quality of representation appropriate to capital cases.
(B) Co-counsel assignments must be assigned to attorneys who:

(i) are members in good standing of the Idaho State Bar, admitted to practice in Idaho or admitted to practice pro hac vice; and
(ii) qualify as lead counsel under subsection (c)(1) or meet the following requirements:

(1) are experienced and active trial practitioners with at least three years’ litigation experience in criminal defense or prosecution;
(2) have prior experience as lead counsel in at least three felony jury trials of cases which were tried to completion;
(3) are familiar with the rules, practice and procedure of the district courts of the state of Idaho;
(4) have attended and successfully completed at least six hours of Idaho State Bar approved training or educational programs focusing on capital cases, within the last two years; and
(5) have demonstrated the proficiency and commitment necessary for the quality of representation appropriate to capital cases.
(C) Alternate Procedures. Applications for lead and co-counsel assignments may be made by persons with extensive criminal trial experience or extensive civil Iitigation experience, if it is clearly demonstrated to the Idaho Supreme Court or the Court’s designee that competent representation will be provided in a capital case. Lawyers appointed under this paragraph must meet either of the following qualifications:

(i) experience in some stage of death penalty litigation that does not meet the levels required in subsections (c)(1)(A) or (c)(1)(B), or,
(ii) specialized post-graduate training in the defense or prosecution of persons accused of capital crimes.
(2)Appeal/Post-Conviction.

(A) Appellate or post-conviction counsel must either qualify as “lead trial counsel” under subsection (c)(1)(A) or meet the following requirements:

(i) be a member in good standing of the Idaho State Bar, admitted to practice in Idaho or admitted to practice pro hac vice;
(ii) be familiar with the rules, practice and procedure of the appellate courts of the State of Idaho;
(iii) be experienced and active post-conviction and appellate practitioners with at least three years’ experience in criminal defense or prosecution;
(iv) have served as court appointed or retained counsel in the appeal or the postconviction review of a case in which the death penalty was imposed, or have served as counsel in a habeas corpus death penalty case in Federal Court;
(v) have attended and successfully completed at least 12 hours of Idaho State Bar approved training or educational programs focusing on capital cases, within the last two years; and
(vi) have demonstrated the proficiency and commitment necessary for the quality of representation appropriate to capital cases.

If the court in its discretion appoints co-counsel for appeal or post-conviction, these requirements do not apply to co-counsel.

(B) Alternate Procedures. Application for lead assignments may be made by persons with extensive criminal trial experience or extensive civil litigation experience, if it is clearly demonstrated to the Idaho Supreme Court or the Court’s designee that competent representation will be provided in a capital case. Lawyers appointed under this subsection must meet either of the following qualifications:

(i) have experience with the appeal and/or post-conviction litigation of death penalty cases that does not meet the levels detailed in (c)(2)(A), or
(ii) have specialized post-graduate training in the defense or prosecution of persons accused of capital crimes.
(d) Workload. Appointments pursuant to this rule should provide each client with quality representation in accordance with constitutional and professional standards. The appointing authority must not make an appointment without assessing the impact of the appointment on the attorney’s workload.
(e) Compensation and Payment of Expenses. Compensation and payment of expenses must be made pursuant to the provisions of Idaho Code § 19-860(b). Counsel must submit timely claims for compensation and payment of expenses in the manner provided in Idaho Code § 31-1501 et seq.
(f) Procedures for Maintaining Rosters of Qualified Counsel.

(1) The Supreme Court of the State of Idaho or the Court’s designee must maintain rosters of attorneys who are competent and eligible to represent capital defendants. The first roster will contain the names of attorneys eligible for appointment as lead counsel for trial and appeal/post-conviction cases, pursuant to the qualification requirements specified in this rule. The second roster will contain the names of attorneys eligible for appointment as co-counsel for trial and appeal/post-conviction cases, pursuant to the qualification requirements specified in this rule.

(A) Application.

(i) Attorneys may obtain an application form from the Supreme Court of the State of Idaho or the Court’s designee.
(ii) Completed applications must be submitted to the Supreme Court of the State of Idaho or the Court’s designee. The Court or its designee will review the application for completeness. If the application is incomplete, it must be returned to the applicant, explaining what further information is required.
(B) Review and Recommendation.

(i) A standing Death Penalty Counsel Review and Recommendation Committee will be established with membership appointed by the Supreme Court of the State of Idaho.
(ii) The Supreme Court or its designee must forward completed applications to the Death Penalty Counsel Review and Recommendation Committee. On receipt, a thorough investigation of the applicant’s background, experience and training, and an assessment of whether the applicant is competent to provide adequate legal counsel to a capital defendant must be completed.
(iii) The application and recommendation will then be forwarded to the Supreme Court of the State of Idaho or its designee who will determine whether or not to include the applicant on a roster.
(C) Term of Eligibility. Once included on a roster, the attorney’s name will remain on the roster for two years from the notice of inclusion on the roster. In order to remain on a roster, the attorneys must forward to the Supreme Court of the State of Idaho or the Court’s designee, one month before the expiration of the term of eligibility, proof of compliance with the qualification requirements of this rule.
(g) Roster of Qualified Capital Defense Counsel. The Supreme Court of the State of Idaho or the Court’s designee will maintain the rosters of qualified capital defense counsel. The Court or the Court’s designee must distribute to all district court judges, at least annually, rosters of qualified capital defense counsel.
(h) Appointment of Counsel Not on Roster. Notwithstanding the requirement of this rule that all appointments must be from the court-maintained rosters, if an appointment of counsel from the rosters cannot practically and expeditiously be made, the appointing court may appoint one or more counsel who are not on the roster but who otherwise meet the qualifications set out in this rule. The order of appointment must contain findings related to each attorney’s qualifications under the applicable section of this rule, and must also require each attorney to file an application under subsection (f)(1)(A) within 30 days of his or her appointment. Any placement on the roster after such an appointment will relate back to the date of appointment for all purposes.

Id. Crim. R. 44.3

Adopted by Order dated February 22, 2017, effective July 1, 2017