Arizona

Criminal Procedure

Criminal Procedure

Rule 6.8 – Standards for Appointment and Performance of Counsel in Capital Cases

(a)Generally. To be eligible for appointment in a capital case, an attorney must:

(1) have been a member in good standing of the State Bar of Arizona for at least 5 years immediately before the appointment;
(2) have practiced criminal litigation in Arizona state courts for 3 years immediately before the appointment;
(3) have demonstrated the necessary proficiency and commitment that exemplifies the quality of representation appropriate to capital cases;
(4) have successfully completed, within one year before the initial appointment, at least 6 hours of relevant training or educational programs in the area of capital defense; and successfully completed within one year before any later appointment, at least 12 hours of relevant training or educational programs in the area of criminal defense;
(5) be familiar with and guided by the performance standards in the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, and the 2008 Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases.

If an attorney is a member in good standing of the State Bar of Arizona, the attorney’s practice in a federal jurisdiction or in another state may be considered for purposes of satisfying the requirements of (a)(1) and (a)(2).

(b)Trial Counsel.

(1)Lead Counsel. To be eligible for appointment as lead trial counsel, an attorney must meet the requirements of (a) and must have:

(A) practiced criminal litigation in Arizona state courts for 5 years immediately before the appointment; and
(B) been lead counsel in at least 9 felony jury trials that were tried to completion, and have been lead counsel or co-counsel in at least one capital jury trial.
(2)Co-Counsel. To be eligible for appointment as co-counsel, an attorney must be a member in good standing of the State Bar of Arizona and meet the requirements of (a)(4) and (a)(5).
(c)Appellate Counsel. To be eligible for appointment as appellate counsel, an attorney must meet the qualifications set forth in (a) and the attorney must:

(1) within 3 years immediately before the appointment, have been lead counsel in an appeal in a case in which a death sentence was imposed (including petitions for review of post-conviction proceedings); and prior experience as lead counsel in the appeal of at least 3 felony convictions; or
(2) prior experience as lead counsel in merits briefing in the appeal of at least 6 felony convictions, including two appeals from first- or second-degree murder convictions.
(d)Post-Conviction Counsel. To be eligible for appointment as post-conviction counsel, an attorney must meet the qualifications set forth in (a) and the attorney must:

(1) within 3 years immediately before the appointment, have been lead counsel in a trial in which a death sentence was sought or in an appeal or post-conviction proceeding in a case in which a death sentence was imposed, and prior experience as lead counsel in the appeal of at least 3 felony convictions and a trial or post-conviction proceeding with an evidentiary hearing; or
(2) have been lead counsel in the appeal of at least 6 felony convictions, including two appeals from first- or second-degree murder convictions, and lead counsel in at least two felony trials or post-conviction proceedings with evidentiary hearings.
(e)Exceptions. In exceptional circumstances, a court may appoint an attorney who does not meet the qualifications set forth in this rule if:

(1) the Supreme Court consents;
(2) the attorney meets the requirements set forth in (a)(3)–(5);
(3) the attorney’s experience, stature, and record establishes that the attorney’s ability significantly exceeds the standards set forth in this rule; and
(4) the attorney associates with a lawyer who meets the qualifications set forth in this rule and the associating attorney is appointed by the court for this purpose.

Ariz. R. Crim. P. 6.8

Added August 31, 2017, effective January 1, 2018.

COMMENT

Rule 6.8(a). The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) and the 2008 Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases constitute a compendium of effective capital defense representation practices. Counsel should be guided by those practices in exercising independent professional judgment. The guidelines do not, however, impose independent requirements on courts. If, for example, the guidelines recommend resources or services from a court, counsel must show a need for that resource or service based on the facts of the particular case. A deviation from the guidelines is not per se ineffective assistance of counsel. The standard for evaluating counsel’s performance continues to be that set forth in Strickland v. Washington, 466 U.S. 668 (1984).

HISTORICAL AND STATUTORY NOTES

Former Rule 6.8, relating to standards for appointment and performance of counsel in capital cases, was abrogated effective January 1, 2018.