Posted: December 4, 2007
Rules of Criminal Procedure
URCrP 08. Appointment of counsel. Amend. The amendments change the requirements to be appointed in capital cases, including increasing the number of education hours and requiring substantial work on a prior capital case.
URCrP 15.5. Out of court statement and testimony of child victims or child witnesses of sexual or physical abuse – Conditions of admissibility. Amend. The amendments are intended to help bring the rule into compliance with the requirements of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
URCrP 33. Regulation of conduct in the courtroom. Amend. The amendments will permit a judge to sanction an attorney or party for incivility in pleadings or courtroom conduct.
I have some concern regarding proposed URCrP 33. Because of the extremely subjective, vague and ambiguous term “uncivil”, I disagree with allowing sanctions for such conduct. The ability of the court to hold someone in contempt would seem sufficient. I feel this proposed rule, if passed, could be easily abused.
My comment goes to proposed URCrP 15.5.
Lines 38-39 state that “The defendant may also be present during the child’s testimony unless the defendant consents to be hidden from the child’s view . . .” Under this language, a defendant who refuses to be hidden may be present, but a defendant who consents to be hidden may not, clearly the opposite of the rule’s intended meaning.
I recommend that the sentence be amended to read something like this: “A defendant who consents to be hidden from the child’s view may also be present during the child’s testimony unless . . .”
This comment relates to proposed rule 8.
Lines 19-21 and lines 44-46 contain a new requirement that death penalty defense counsel complete at least six hours of death penalty CLE within the year prior to appointment. I question whether a lawyer must receive training every year to be qualified to handle such a case. And I am concerned that this particular requirement may unduly shrink the pool of qualified lawyers.
I have a similar concern about the new postconviction CLE qualification found at lines 58-59. My concern is that a one-year time limit may have the unintended consequence of shrinking the pool of qualified lawyers to the point that a few lawyers will be left to shoulder a disproportionate share of postconviction appointments.
The Utah Association of Criminal Defense Lawyers (“UACDL”) applauds the proposed changes to Rule of Criminal Procedure 8 but expresses its strong objections to the lack of specific standards for capital defense attorneys. UACDL welcomes the proposal to increase CLE requirements but the Rule requires far more dramatic changes to help ensure that only qualified competent defense attorneys are appointed in capital cases. Even under the proposed amendments, nominally-qualified defense attorneys may represent capital defendants despite the complex nature of death penalty prosecutions. Capital cases require expertise in numerous and varied specialized fields of study including criminal investigation, forensic science, complex habeas corpus and post-conviction litigation, mental health pathology, neurology, neuropsychology, and other complicated medical disciplines that affect brain functioning and behavior. To ensure the fair, efficient, and even-handed imposition of the death penalty, Utah must significantly increase and clarify the standards for criminal defense lawyers beyond the changes to Rule 8 currently proposed.
Fortunately, the American Bar Association (“ABA”) has already completed the task of identifying the standards for capital defense lawyers. In 2003, the ABA published its Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”). The ABA Guidelines are published both online and in the Hofstra Law Review. http://www.abanet.org/legalservices/downloads/sclaid/deathpenaltyguidelines2003.pdf; 31 Hofstra L. Rev. 913 (2003). These guidelines serve as the single most comprehensive and authoritative source of standards for defense lawyers in capital cases. Both the Utah and United States Supreme Courts have specifically referenced the ABA Guidelines in determining whether defense counsel has provided effective assistance in capital cases. See Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 522-25 (2003); Menzies v. Galetka, 2006 UT 81, ¶90, 150 P.3d 480. Of particular note, Guideline 5.1(B)(2) specifically lists the areas of necessary expertise that capital defense attorneys must possess.
Other states have followed the United States Supreme Court’s lead and have specifically endorsed the ABA Guidelines in establishing the standards for appointing capital defense attorneys. Most recently, Arizona and Oregon have amended their court rules on capital defense lawyers’ qualifications to specifically reference the ABA Guidelines. Ariz. R. Crim. P. 6.8; Or. Qualification Standard IV(5) (2007). Further, the Tennessee legislature has just established a committee to study the imposition of the death penalty and has directed the committee to use the ABA Guidelines as a guide in assessing the fairness and accuracy of capital punishment. Tenn. Code Ann. § 39-13-209 (2007). UACDL urges Utah to join this growing trend of jurisdictions that have adopted the ABA Guidelines.
To further ensure that only qualified attorneys are appointed to capital cases, some oversight is needed in Rule 8. For example, Utah’s Capital Indigent Defense Fund currently certifies capital attorneys’ qualifications at the trial stage. But, no one oversses the appointment of appellate or post-conviction counsel.
The panel that oversees the trial fund could also assess attorney qualifications for appeals and post-conviction proceedings. Under the current version of Rule 8, the trial judge is charged with appointing qualified counsel in state post-conviction proceedings but the Rule grants judges significant leeway to overlook even minimum qualifications. Specifically, the Rule allows for the appointment of counsel when an attorney has “appeared as counsel or co-counsel in a post-conviction case at an evidentiary hearing, on appeal, or otherwise demonstrated proficiency in the area of post-conviction litigation.” Utah R. Crim. P. 8(e)(2). The Rule does not define this latter catch-all phrase about proficiency and no one reviews attorney qualifications under this loosely-worded provision. An oversight board would ensure the quality of post-conviction attorneys. Another possible solution is the creation of a statewide capital post-conviction defender office. In the interim, Rule 8 provides no assurances that qualified counsel will be appointed on appeal or in post-convictions proceedings.
Rule 8 also fails to address an attorney’s workload and available time to devote to capital cases. Given the complexity of capital cases and the degree of expertise that they require, attorneys must be able to devote the majority of their law practices to capital defendants. Even the most qualified competent defense attorney cannot adequately represent a capital client unless the attorney’s workload and available time allow for effective representation. Indiana Rule of Criminal Procedure 24(B)(3) addresses this very issue and provides a useful guide for developing a similar provision in Utah.
Further, Rule 8 should specifically prohibit appointments based on past experience or minimal qualifications alone. Just because an attorney has handled capital cases in the past or currently satisfies minimal requirements does not mean that the attorney is qualified for appointment. Poor performance in prior cases, unethical conduct, and failure to follow the ABA Guidelines should exclude attorneys from capital appointments. California, for example, excludes attorneys based solely on minimal qualifications: “An attorney is not entitled to appointment simply because he or she meets the minimum qualifications.” Cal. R. Crim. P. 4.117(b).
UACDL emphatically requests the Utah Supreme Court to consider these additional provisions before amending Rule 8. UACDL is committed to providing capital defendants the best representation available. But, presently, only superficially-qualified defense attorneys may be appointed in capital cases. This concern is most pressing in smaller unpopulated areas of the State where few defense attorneys reside.
In contrast to adopting additional assurances of competent qualified counsel, Assistant Utah Attorney General Fred Voros has posted comments objecting to the increased CLE requirements. He contends that doing so may “unduly shrink the pool of qualified lawyers.” Rather than keeping the threshold for capital defense attorneys’ qualifications artificially low to ensure a large pool of qualified attorneys, UACDL seeks to improve the quality and competency of defense lawyers in capital cases. Focusing on the size of the pool of defense lawyers fails to address the currently low competency standards for defense counsel. The best way to avoid the delays and multiple appeals that capital cases often involve is to increase the standards for capital defense counsel. Increasing attorney qualifications especially makes sense given that capital litigation is among the most complicated and intricate areas of the law that only the best and the brightest attorneys should handle.
The Utah Association of Criminal Defense Lawyers requests an additional requirement to the proposed changes to Rule 8. Because state post-conviction litigation is so complicated and distinct from criminal law and capital cases specifically, the qualifications for post-conviction attorneys should require continuing legal education in post-conviction procedures. Post-conviction litigation, by definition, is not criminal by nature. Instead it is, in fact, more akin to civil litigation and procedure. Accordingly, criminal defense lawyers likely lack the necessary training and experience to tackle post-coviction cases.