Washington Courts: Judicial News Report Detail

Supreme Court orders change to court appointments in death penalty cases

OLYMPIA--The Washington Supreme Court tightened qualifications for court-appointed attorneys representing defendants in capital cases today when it adopted changes to Superior Court Special Proceedings Criminal Rule 2. 

Proposed by the Office of Public Defense, the rule changes specify that trial courts in capital cases must appoint two attorneys with a minimum of five years of experience.  One of the two must be on a list approved by a committee appointed by the Supreme Court. The rule also states that the attorneys must not also be presently serving as appointed counsel in another active trial court capital case. 

In announcing the rule changes, Supreme Court Chief Justice Gerry Alexander said, “The new standards are an important step forward in our effort to ensure that indigent defendants charged with capital crimes are provided with an adequate legal defense in Washington State.”  

Nearly four years ago, the Supreme Court created the Capital Counsel Panel to identify attorneys in Washington who have demonstrated a “proficiency and commitment to quality representation which is appropriate to a capital case”.    Seen as a resource for trial judges up until this time, the revised rule will make appointment from this list mandatory, effective January 1, 2003.

The Capital Counsel Panel is chaired by Federal Public Defender Brian Tsuchida and includes a retired member of the judiciary, two representatives from the Federal Public Defender’s Office, two criminal defense attorneys and an alternate member in private practice.   

SPRC2 relates only to attorneys appointed by courts to represent indigent defendants.  Counsel retained by defendants in capital cases are not affected by the special proceeding rule.  A copy of the new rule is listed below.

CONTACTS:  Chief Justice Gerry Alexander, Washington Supreme Court 360-357-2029; Joanne Moore, Director Office of Public Defense 360-956-2107.

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Suggested Rule Change

SUPERIOR COURT SPECIAL PROCEEDINGS RULES-CRIMINAL (SPRC 2)

Rule 1.  SCOPE OF RULES

(a)    Except as otherwise stated, these rules apply to all stages of proceedings in criminal cases in which the death penalty has been or may be decreed.   These rules do not apply in any case in which imposition of the death penalty is no longer possible.

   (b)  Except when inconsistent with these rules, the Superior Court Criminal Rules and the Rules of Appellate Procedure shall continue to apply in capital cases.

Rule 2.  APPOINTMENT OF COUNSEL

            At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal.  Notwithstanding RAP 15.2(f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal.

            A list of attorneys qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court.  All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case.  At least one Both counsel at trial must have five years’ experience in the practice of criminal law, (and) be familiar with and experienced in the utilization of expert witnesses and evidence, and not be presently  serving as appointed counsel in another active trial level death penalty case. and be learned in the law of capital punishment by virtue of training or experience. ( At least) Oone counsel must be, and both may be, qualified for appointment in capital trials on the capital panel’s list, unless circumstances exist such that it is in the defendant’s interest to appoint otherwise qualified counsel learned in the law of capital punishment by virtue of training or experience. The trial court shall make findings of fact if good cause is found for not appointing list counsel.

            At least one counsel on appeal must have three years’ experience in the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience.   A list of attorneys qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court.  In appointing counsel for trial and on appeal, the trial court and the Supreme Court will consider this the list.  A list of attorneys qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court list.  However, the courts , but will have the final discretion in the appointment of counsel. in capital cases.

Comment

If the period of time for filing the death notice has passed, and the death notice has not been filed, the court may then reduce the number of attorneys to one to proceed with the murder trial.

(April 18, 2002 draft)