Arkansas

Criminal Procedure

Criminal Procedure

Rule 37.5 – Special Rule for Persons Under Sentence of Death

(a) Purpose and scope. This rule shall apply only to persons under a sentence of death. Except as otherwise provided in this rule, the provisions of Rules 37.1, 37.2, 37.3 and 37.4 shall apply to a petition for postconviction relief filed by a person under sentence of death. The intent of this rule is to comply with the provisions of 28 United States Code § 2261 et seq.
(b) Requirement of Hearing on Appointment of Attorney.

(1)

(A) Upon affirmance of a sentence of death by the Supreme Court of Arkansas, the clerk of the court shall forward a copy of the mandate to the circuit court that imposed the sentence of death and to the Attorney General. The circuit court shall conduct a hearing to consider the appointment of an attorney to represent the person in post-conviction proceedings under this rule. If the Supreme Court affirms a sentence of death, the hearing shall be held not later than twenty-one (21) days after the mandate is issued by the Supreme Court.
(B) If the mandate is recalled within the twenty-one (21) day period, the requirement of a hearing shall be suspended until the mandate is reissued. The hearing shall be held within twenty-one (21) days after the mandate is reissued. If the hearing has already been held when the mandate is recalled, any findings and order entered pursuant to this subsection shall be deemed null and void and a new hearing shall be required within twenty-one (21) days after the mandate is reissued.
(2) The person under sentence of death shall be present at the hearing. At the hearing the circuit court shall inform the person of the existence of possible relief under this rule and shall determine whether the person desires the appointment of an attorney to represent him in proceedings under this rule. If the person rejects the appointment of an attorney, the waiver shall be made in open court on the record. If the circuit court determines that the person is indigent and that he either accepts the appointment of an attorney or is unable to make a competent decision whether to accept or reject an attorney, the circuit court shall issue written findings to that effect and enter a written order appointing an attorney to represent the person in proceedings under this rule. If the circuit court determines that the person rejects the appointment of an attorney and understands the legal consequences of his decision, or that the person is not indigent, the circuit court shall issue written findings to that effect and enter a written order declining to appoint an attorney to represent the person in proceedings under this rule. In determining whether the person is indigent, the circuit court shall consider the extraordinary cost of postconviction proceedings in a capital case. The written findings and order required by this subsection shall be issued within seven (7) days after the hearing required by this subsection. The circuit clerk shall forward a copy of the order to the Attorney General.
(3) The appointment of an attorney under this rule shall remain effective through an appeal to the Supreme Court from a proceeding under this rule.
(c) Qualifications of appointed attorney.

(1) Except as provided in subsection (c)(4) of this rule, an attorney appointed to represent a person under this rule shall meet each of the following standards:

(A) Within ten (10) years immediately preceding the appointment, the attorney shall have:

(i) represented a petitioner under sentence of death in a state or federal postconviction proceeding; or
(ii) actively participated as defense counsel in at least five (5) felony jury trials tried to completion, including one trial in which the death penalty was sought; and
(B) Within ten (10) years immediately preceding the appointment, the attorney shall have:

(i) represented a petitioner in at least three state or federal postconviction proceedings, one of which proceeded to an evidentiary hearing and all of which involved a conviction of a violent felony, including one conviction of murder; or
(ii) represented a defendant in at least three (3) appeals involving a conviction of a violent felony, including one conviction of murder, and represented a petitioner in at least one evidentiary hearing in a state or federal postconviction proceeding; and
(C) The attorney shall have been actively engaged in the practice of law for at least three (3) years; and
(D) Within two (2) years immediately preceding the appointment, the attorney shall have completed at least six (6) hours of continuing legal education or other professional training in the representation of persons in capital trial, capital appellate, or capital postconviction proceedings.
(2) The circuit court may appoint pro hac vice an attorney who is not licensed to practice in Arkansas but who meets the standards of (c)(1) provided the court also appoints as co-counsel an attorney who is licensed to practice in Arkansas. In such case, the attorney who is licensed to practice in Arkansas is not required to meet the standards of (c)(1).
(3) The court shall make findings, either on the record or in the written order required by subsection (b) of this rule, specifying the qualifications of counsel which satisfy the standards for appointment under this rule.
(4) The circuit court may appoint an attorney who does not meet the standards of (c)(1)(A) and (c)(1)(B), but who does meet the standards of (c)(1)(C) and either (c)(1)(A), (B), or (D) if the circuit court determines that the attorney is clearly qualified because of his unique training, experience, and background to represent a person under sentence of death in a postconviction proceeding. The order appointing such an attorney shall contain written findings specifying the unique training, experience, and background that qualify the attorney for appointment.
(5) The circuit court shall not appoint an attorney under this rule if the attorney represented the person under a sentence of death at trial or on direct appeal to the Supreme Court of Arkansas unless the person and the attorney request continued representation on the record. If the circuit court does appoint an attorney who represented the person at trial or on direct appeal, the circuit court shall appoint a second attorney, who did not represent the person at trial or on direct appeal, to assist in the representation of the person. At least one of the attorneys shall meet the standards of (c)(1) or (c)(4).
(6) In accordance with the terms of this rule, the circuit court may appoint the Capital, Conflicts, and Appellate Office of the Arkansas Public Defender Commission, unless otherwise disqualified.
(d) Access to records. If a person is under sentence of death, any attorney who represented such person at trial or on appeal in connection with the conviction that resulted in the sentence of death shall make available the complete files in connection with such conviction to the attorney who represents such person in postconviction proceedings under this rule. The attorney who represents such person in postconviction proceedings may inspect and photocopy such files, but the attorneys who represented such person at trial or on appeal shall maintain custody of their respective files, except for material which was admitted into evidence in any trial proceeding, for at least five (5) years following completion of their representation of such person.
(e) Time for filing postconviction petition. A petition for relief under this rule shall be filed in the circuit court that imposed the sentence of death within ninety (90) days after the entry of the order required in subsection (b)(2) of this rule.
(f) Notification of filing of petition. Upon the filing of a petition under this rule, the petitioner shall immediately forward a copy of the petition to the circuit judge who entered the order required in subsection (b)(2) of this rule, the prosecuting attorney for the district, the Attorney General, the petitioner’s counsel of record at the trial resulting in the sentence of death, and the Executive Director of the Arkansas Public Defender Commission.
(g) Effect on sentence of death. When the circuit court enters an order under subsection (b) of this rule, the court shall also enter an order staying any sentence of death. The stay of execution shall remain in effect until dissolved by a court with competent jurisdiction. The circuit court shall enter an order dissolving the stay of execution if:

(1) A timely petition is not filed under this rule; or
(2) A timely petition is filed under this rule but relief is denied by the circuit court under subsection (i) of this rule, and the time for filing an appeal from the denial of relief has expired without the filing of a notice of appeal.
(h) Hearing on petition. If the circuit court determines that a hearing is necessary, the hearing shall be held within one hundred eighty (180) days from the date of the filing of the petition, unless continued for good cause shown.
(i) Decision. If a hearing on the petition is held, the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. The time within which the circuit court shall make specific written findings of fact and conclusions of law shall be extended by thirty (30) days if the circuit court requests or permits post-hearing briefs.
(j) Compensation of appointed attorney. Compensation to be paid to attorneys appointed under this rule, as well as the fees and expenses to be paid for investigative, expert, and other reasonably necessary services, shall be fixed by the circuit and appellate courts in their respective proceedings at such rates or amounts as the courts determine to be reasonable. All compensation and reasonable expenses authorized by the courts shall be paid pursuant to Ark. Code Ann. § 16-91-202(f), or as otherwise provided by law.
(k) Effective date. The effective date of this rule is August 1, 1997. This rule shall apply to all persons under sentence of death who became eligible to file a petition under Rule 37.2(c) on or after March 31, 1997. For persons who were eligible to file a petition between March 31, 1997 and August 1, 1997, the hearing required by subsection (b)(1) of this rule shall be conducted no later than twenty-one (21) days after the effective date of this rule. In all other cases, the hearing shall be conducted within the time set forth in subsection (b)(1) of this rule. In all cases, the time for filing the petition shall be governed by subsection (e) of this rule.

Ark. R. Crim. P. 37.5

Reporter’s Notes to 1998 Amendments: Subsection (b) (1) (B) was added to address the situation where the mandate is recalled. Subsection (b) (1) (A) was amended to require that a copy of the mandate be forwarded to the Attorney General, and subsection (b) (2) was amended to require that a copy of the order with respect to the appointment of counsel be forwarded to the Attorney General. Reporter’s Notes to 2000 Amendment: Subsection (g) (2) was amended to clarify the dissolution of the stay of execution when postconviction relief has been denied and a notice of appeal has not been timely filed. (See Ark. R. App. P.-Crim. 10 for dissolution of stays of execution when the denial of postconviction relief is affirmed on appeal.) [Article XI. News Media Coverage of Criminal Cases]