Supreme Court Seeks Public Comment on Amendments to Appoint Capital Case Counsel for Indigent Defendants
Under proposed rule changes, the Ohio Supreme Court would alter some of the qualifications required for court-appointed attorneys who seek appointment by a court to represent indigent defendants in capital cases. The Supreme Court opened a 30-day public comment period on the rule changes.
Attorneys who wish to be appointed by a court to represent indigent defendants in capital cases must apply for certification from the Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases. To be certified by the committee as trial lead counsel, trial co-counsel, or appellate counsel, attorneys must meet certain qualifications and possess specific practice experience.
Some of the proposed rule changes address trial lead counsel qualifications:
Currently, lead counsel must have experience as trial counsel for the defense in the jury trial of at least one capital case or experience as trial co-counsel for the defense in the jury trial of at least two capital cases and at least one of the following types of experience:
- Experience as “lead counsel” for the defense in a jury trial of at least one murder or aggravated murder case, or
- Experience as “lead counsel” in 10 or more criminal or civil jury trials, at least three of which were felony jury trials, or
- Experience as “lead counsel” in three murder or aggravated murder jury trials; one murder or aggravated murder jury trial and three felony jury trials; or three aggravated or first or second degree felony jury trials in a court of common pleas in the prior three years.
Under the proposed rules, experience as lead counsel in a jury trial of at least one murder or aggravated murder case must have occurred within the past 10 years.
The committee recommended expanding the time frame from three to five years for experience as trial lead counsel in three aggravated or first or second degree felony jury trials in a court of common pleas.
The committee also recommended that experience in 10 or more criminal or civil jury trials, at least three of which were felony jury trials, will no longer suffice as qualifying experience for lead counsel.
Here are some of the proposed rule changes that address co-counsel qualifications:
- Similar to the lead counsel provision, new rules would require co-counsel previous experience to have occurred within the last 10 years in at least one murder or aggravated murder jury trial.
- The committee recommended expanding the necessary experience for co-counsel to second-degree felony jury trials but limiting the experience to either a first (current rule) or second-degree felony jury trial within the past five years.
- The committee also recommended expanding the “look-back period” for co-counsel experience – either as lead or co-counsel in at least two felony jury, but not civil jury trials in common pleas court – to five years.
Other proposed amendments to the rules would:
- Reestablish the committee into the Commission on Appointment of Counsel in Capital Cases.
- Limit credit for death penalty training programs to sessions delivered in person instead of replayed in digital or electronic format.
- Require a certified attorney to notify the client, the court, and the commission when his or her certification lapses.
- Repeal the current Rules of Superintendence for the Courts of Ohio 20 through 20.05 and relocate them into a new separate set called the Rules for Appointment of Counsel in Capital Cases.
The rule amendments proposed today represent the culmination of several years worth of work by the committee and are not related to the recent Rule 20 recommendations contained in the final report issued by the Joint Task Force to Review the Administration of Ohio’s Death Penalty.
Access the text of the proposed amendments. Comments should be submitted by July 9 in writing to:
Susan Christoff, Attorney Services Division Director
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
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