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2020 California Rules of Court

Rule 8.605. Qualifications of counsel in death penalty appeals

(a) Purpose

This rule defines the minimum qualifications for attorneys appointed by the Supreme Court in death penalty appeals. These minimum qualifications are designed to promote competent representation and to avoid unnecessary delay and expense by assisting the court in appointing qualified counsel. Nothing in this rule is intended to be used as a standard by which to measure whether the defendant received effective assistance of counsel. An attorney is not entitled to appointment simply because the attorney meets these minimum qualifications.

(Subd (a) amended effective April 25, 2019.)

(b) General qualifications

The Supreme Court may appoint an attorney only if it has determined, after reviewing the attorney's experience, writing samples, references, and evaluations under (c) and (d), that the attorney has demonstrated the commitment, knowledge, and skills necessary to competently represent the defendant. An appointed attorney must be willing to cooperate with an assisting counsel or entity that the court may designate.

(Subd (b) amended effective April 25, 2019.)

(c) Qualifications for appointed appellate counsel

Except as provided in (d), an attorney appointed as lead or associate counsel in a death penalty appeal must satisfy the following minimum qualifications and experience:

(1)  California legal experience

Active practice of law in California for at least four years.

(2)  Criminal appellate experience

Either:

(A)  Service as counsel of record for either party in seven completed felony appeals, including as counsel of record for a defendant in at least four felony appeals, one of which was a murder case; or

(B)  Service as:

(i)  Counsel of record for either party in five completed felony appeals, including as counsel of record for a defendant in at least three of these appeals; and

(ii)  Supervised counsel for a defendant in two death penalty appeals in which the opening brief has been filed. Service as supervised counsel in a death penalty appeal will apply toward this qualification only if lead or associate counsel in that appeal attests that the supervised attorney performed substantial work on the case and recommends the attorney for appointment.

(3)  Knowledge

Familiarity with Supreme Court practices and procedures, including those related to death penalty appeals.

(4)  Training

(A)  Within three years before appointment, completion of at least nine hours of Supreme Court-approved appellate criminal defense training, continuing education, or course of study, at least six hours of which involve death penalty appeals. Counsel who serves as an instructor in a course that satisfies the requirements of this rule may receive course participation credit for instruction, on request to and approval by the Supreme Court, in an amount to be determined by the Supreme Court.

(B)  If the Supreme Court has previously appointed counsel to represent a person in a death penalty appeal or a related habeas corpus proceeding, and counsel has provided active representation within three years before the request for a new appointment, the court, after reviewing counsel's previous work, may find that such representation constitutes compliance with some or all of this requirement.

(5)  Skills

Proficiency in issue identification, research, analysis, writing, and advocacy, taking into consideration all of the following:

(A)  Two writing samples-ordinarily appellate briefs-written by the attorney and presenting an analysis of complex legal issues;

(B)  If the attorney has previously been appointed in a death penalty appeal or death penalty-related habeas corpus proceeding, the evaluation of the assisting counsel or entity in that proceeding;

(C)  Recommendations from two attorneys familiar with the attorney's qualifications and performance; and

(D)  If the attorney is on a panel of attorneys eligible for appointments to represent indigents in the Court of Appeal, the evaluation of the administrator responsible for those appointments.

(Subd (c) amended and relettered effective April 25, 2019; adopted as subd (d) effective January 1, 2005; previously amended effective January 1, 2007.)

(d) Alternative qualifications

The Supreme Court may appoint an attorney who does not meet the California law practice requirement of (c)(1) or the criminal appellate experience requirements of (c)(2) if the attorney has the qualifications described in (c)(3)-(5) and:

(1)  The court finds that the attorney has extensive experience in another jurisdiction or a different type of practice (such as civil trials or appeals, academic work, or work for a court or prosecutor) for at least four years, providing the attorney with experience in complex cases substantially equivalent to that of an attorney qualified under (c).

(2)  Ongoing consultation is available to the attorney from an assisting counsel or entity designated by the court.

(3)  Within two years before appointment, the attorney has completed at least 18 hours of Supreme Court-approved appellate criminal defense or habeas corpus defense training, continuing education, or course of study, at least nine hours of which involve death penalty appellate or habeas corpus proceedings. The Supreme Court will determine in each case whether the training, education, or course of study completed by a particular attorney satisfies the requirements of this subdivision in light of the attorney's individual background and experience. If the Supreme Court has previously appointed counsel to represent a person in a death penalty appeal or a related habeas corpus proceeding, and counsel has provided active representation within three years before the request for a new appointment, the court, after reviewing counsel's previous work, may find that such representation constitutes compliance with some or all of this requirement.

(Subd (d) amended and relettered effective April 25, 2019; adopted as subd (f) effective January 1, 2005.)

(e) Use of supervised counsel

An attorney who does not meet the qualifications described in (c) or (d) may assist lead or associate counsel, but must work under the immediate supervision and direction of lead or associate counsel.

(Subd (e) amended and relettered effective April 25, 2019; adopted as subd (h) effective January 1, 2005.)

(f) Appellate and habeas corpus appointment

(1)  An attorney appointed to represent a person in both a death penalty appeal and death penalty-related habeas corpus proceedings must meet the minimum qualifications of both (c) or (d) and rule 8.652.

(2)  Notwithstanding (1), two attorneys together may be eligible for appointment to represent a person jointly in both a death penalty appeal and death penalty-related habeas corpus proceedings if the Supreme Court finds that one attorney satisfies the minimum qualifications set forth in (c) or (d), and the other attorney satisfies the minimum qualifications set forth in rule 8.652.

(Subd (f) amended and relettered effective April 25, 2019; adopted as subd (i) effective January 1, 2005.)

(g) Designated entities as appointed counsel

(1)  Notwithstanding any other provision of this rule, both the State Public Defender and the California Appellate Project-San Francisco are qualified to serve as appointed counsel in death penalty appeals.

(2)  When serving as appointed counsel in a death penalty appeal, the State Public Defender or the California Appellate Project-San Francisco must not assign any attorney as lead counsel unless it finds the attorney qualified under (c)(1)-(5) or the Supreme Court finds the attorney qualified under (d).

(Subd (g) amended and relettered effective April 25, 2019; adopted as subd (j) effective January 1, 2005.)

Rule 8.605 amended effective April 25, 2019; repealed and adopted as rule 76.6 effective January 1, 2005; previously amended and renumbered effective January 1, 2007.

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