Rule 8. Appointment of counsel.
(a) A defendant charged with a
public offense has the right to self representation, and if indigent, has the
right to court-appointed counsel if the defendant faces a substantial
probability of deprivation of liberty.
(b) In all cases in which counsel
is appointed to represent an indigent defendant who is charged with an offense
for which the punishment may be death, the court shall appoint two or more
attorneys to represent such defendant and shall make a finding on the record
based on the requirements set forth below that appointed counsel is proficient
in the trial of capital cases. In making its determination, the court shall
ensure that the experience of counsel who are under consideration for
appointment have met the following minimum requirements:
(b)(1) at least one of the
appointed attorneys must have tried to verdict six felony cases within the past
four years or twenty-five felony cases total;
(b)(2) at least one of the
appointed attorneys must have appeared as counsel or co-counsel in a capital or
a felony homicide case which was tried to a jury and
which went to final verdict;
(b)(3) at least one of the
appointed attorneys must have completed or taught within the past five years an
approved continuing legal education course or courses at least eight hours of
which deal, in substantial part, with the trial of death penalty cases; and
(b)(4) the experience of one of
the appointed attorneys must total not less than five years in the active
practice of law.
(c) In making its selection of
attorneys for appointment in a capital case, the court should also consider at
least the following factors:
(c)(1) whether one or more of the
attorneys under consideration have previously appeared as counsel or co-counsel
in a capital case;
(c)(2) the extent to which the
attorneys under consideration have sufficient time and support and can dedicate
those resources to the representation of the defendant in the capital case now
pending before the court with undivided loyalty to the defendant;
(c)(3) the extent to which the
attorneys under consideration have engaged in the active practice of criminal
law in the past five years;
(c)(4) the diligence, competency
and ability of the attorneys being considered; and
(c)(5) any other factor which may
be relevant to a determination that counsel to be appointed will fairly, efficiently
and effectively provide representation to the defendant.
(d) In all cases where an
indigent defendant is sentenced to death, the court shall appoint one or more
attorneys to represent such defendant on appeal and shall make a finding that
counsel is proficient in the appeal of capital cases. To be found proficient to
represent on appeal persons sentenced to death, the combined experience of the
appointed attorneys must meet the following requirements:
(d)(1) at least one attorney must
have served as counsel in at least three felony appeals; and
(d)(2) at least one attorney must
have attended and completed within the past five years an approved continuing
legal education course which deals, in substantial part, with the trial or
appeal of death penalty cases.
(e) In all cases in which counsel
is appointed to represent an indigent petitioner pursuant to Utah Code Ann.
Section 78B-9-202(2)(a), the court shall appoint one or more attorneys to
represent such petitioner at post-conviction trial and on post-conviction
appeal and shall make a finding that counsel is qualified to represent persons
sentenced to death in post-conviction cases. To be found qualified, the
combined experience of the appointed attorneys must meet the following
requirements:
(e)(1) at least one of the
appointed attorneys must have served as counsel in at least three felony or
post-conviction appeals;
(e)(2) at least one of the
appointed attorneys must have appeared as counsel or co-counsel in a
post-conviction case at the evidentiary hearing, on appeal, or otherwise
demonstrated proficiency in the area of post-conviction litigation;
(e)(3) at least one of the
appointed attorneys must have attended and completed or taught within the past
five years an approved continuing legal education course which dealt, in
substantial part, with the trial and appeal of death penalty cases or with the
prosecution or defense of post-conviction proceedings in death penalty cases;
(e)(4) at least one of the
appointed attorneys must have tried to judgment or verdict three civil jury or
felony cases within the past four years or ten cases total; and
(e)(5) the experience of at least
one of the appointed attorneys must total not less than five years in the
active practice of law.
(f) Mere noncompliance with this
rule or failure to follow the guidelines set forth in this rule shall not of
itself be grounds for establishing that appointed counsel ineffectively
represented the defendant at trial or on appeal.
(g) Cost and attorneys' fees for
appointed counsel shall be paid as described in Chapter 32 of Title 77.
(h) Costs and attorneys fees for
post-conviction counsel shall be paid pursuant to Utah Code Ann. Section
78B-9-202(2)(a).