"Cases involving the death penalty" or "capital cases" includes cases pending in this district wherein the government is seeking the death penalty under federal law and cases in this district wherein the penalty of death has been imposed by a federal court upon an individual who is seeking to set aside or vacate his or her conviction or sentence on direct appeal or pursuant to 28 U.S.C. §2255. This shall include prosecutions pursuant to any provision of federal law which authorizes the penalty of death. All such cases shall be referred to in this addendum as "capital cases" regardless of the nature of the proceeding. (See Local Rule CR104(d) for procedures that apply to appointment of counsel in state capital cases involving petitions filed pursuant to 28 U.S.C. § 2254).

A. Federal Defender

1. Federal Defender: In appropriate cases, consistent with the resources available to that office, the Federal Defender for the Western District of Washington [hereinafter Federal Defender] may be appointed as counsel in capital cases.

2. Initial Appearance: Before the formal appointment of counsel occurs in a capital case, an attorney with the Federal Defender may appear and act as counsel for the defendant, subject to subsequent approval by the court or the appointment of additional or other counsel under the provisions of subsection 3(e).

B. Appointment of Trial Counsel

1. Appointment of Two or More Attorneys: Due to the complex, demanding and protracted nature of death penalty proceedings, when appointing trial counsel under this section a person shall be entitled to the timely appointment of at least two qualified attorneys, at least one of whom shall be "learned in the law applicable to capital cases." 18 U.S.C. § 3005.

2. Appointment Guidelines: Counsel shall meet, to the extent practical, the qualification and training standards adopted by the American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (Feb. 2003). [Attached as Exhibit "A"]. In addition, at least one attorney so appointed must have been admitted to practice in the Western District of Washington for not less than five years and must have had not less than three years of experience in the actual trial of felony prosecutions in the Western District of Washington. Second, each attorney must have at least fourteen hours of approved continuing legal education in the defense of capital cases in the preceding two years before the trial. This continuing legal education shall include at least two hours focusing on recent developments in capital litigation and two hours focusing on federal death penalty developments.

3. Waiver of Appointment Guidelines: Upon recommendation of the Federal Public Defender, the court for good cause may appoint an attorney whose background, knowledge, or experience would otherwise enable him or her to provide proper representation in a capital case, giving due consideration to the seriousness of the possible penalty and the unique and complex nature of the litigation.

4. Appointment Mechanism: Before the appointment of counsel is made in a capital case, the presiding judge shall inform the Federal Defender that a capital case is pending and that counsel is needed. The Federal Defender for the Western District of Washington shall provide the appointing judge the names of at least two attorneys for appointment as counsel, who shall meet the guidelines for counsel in capital cases as set forth in subsection 3(b), or the exception thereto, set forth in subsection 3(c). Appointment of counsel shall be made by the court.

5. Timing of Appointment of Trial Counsel: The provisions of this section shall apply at the earliest opportunity. In order to protect the rights of a person who is in the focus of an investigation in a capital case, the Federal Defender and/or the presiding judge may assign interim counsel before the appointment of counsel occurs, either at their own initiative or upon the request of any interested party. The provisions of this section shall take effect no later than whenever a defendant is charged with a federal criminal offense for which the penalty of death is possible, unless the government issues written notice at or before the initial appearance that the government will not seek the death penalty or unless the court orders that death is not an applicable punishment upon conviction. If such written notice by the government that it will not seek death as punishment is later permitted to be withdrawn, the provisions set forth in this section shall be implemented as soon after the withdrawal of the notice as is practicable. In the event that counsel for the defendant has already been appointed or retained at the time the government either withdraws its notice not to seek the death penalty or files a notice of intention to seek the death penalty, the provisions of this section shall apply to permit the appointment of additional or substitute counsel if necessary to comply with sections 3(a), (b) and (d). If additional or substitute counsel is appointed under this subsection, such appointment shall be made sufficiently in advance of trial to permit newly appointed counsel an adequate opportunity to prepare, provided that, if necessary to comply with the provisions of Title 18 U.S.C. § 3161, a motion to continue the trial is filed by the defendant.

C. Appointment of Appellate Counsel

In the event the defendant is convicted and sentenced to death, after consultation with trial counsel and the condemned, the Federal Defender shall, where appropriate, provide the presiding judge and/or the Court of Appeals the name of at least two attorneys to perfect a direct appeal. Unless a compelling reason exists to appoint either or both trial attorneys as appellate counsel, the Federal Defender shall recommend at least one counsel to perfect the appeal other than those who represented the defendant at trial. The attorneys recommended for appointment shall meet the qualifications guidelines for appellate counsel referred to in subsection 3(b) [Appendix A] or the exception thereto in subsection 3(c).

D. Appointment of Post-Conviction Counsel

In the event a sentence of death is affirmed on direct appeal, on his own initiative or upon the request of any interested party, and after consultation with 1) the defendant and 2) present and former counsel of record, the Federal Defender shall provide the presiding judge with the names of at least two attorneys to prosecute any post-conviction action. The attorneys appointed shall meet the ABA qualifications guidelines referred to in subsection 3(b) [Exhibit A] as to post-conviction counsel or the exception thereto in subsection 3(c).

E. Investigative and Other Services

1. Inapplicability of CJA Limitations: With respect to services rendered in federal capital proceedings, the presiding judge shall set compensation for investigative, expert and other services in an amount reasonably necessary to obtain such services without regard to CJA limitations and in accordance with 21 U.S.C. § 848(q)(10)(B).

2. With or Without Prior Authorization: Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant in a capital case, the presiding judge shall authorize counsel to obtain such services on behalf of the defendant. Upon a finding that timely procurement of necessary investigative, expert or other services could not practicably await prior authorization, the presiding judge shall authorize such services nunc pro tunc.

3. Ex Parte Applications: Ex parte applications for services other than counsel shall be heard in camera, and the confidentiality of all verbal communications, pleadings and court orders shall be preserved unless expressly waived by the person represented. Such application shall be placed under seal and shall be inaccessible to the government subject to further order of the court.

4. Claims: Claims for compensation of persons providing investigative, expert, and other services under the Act shall be submitted on the appropriate CJA form to the Federal Defender. That office shall review the claim form for mathematical and technical accuracy and for conformity with the Guidelines for the Administration of the Criminal Justice Act, and if correct, shall forward the claim form for the consideration of the appropriate judge. If incorrect, the Federal Defender shall return any claims for compensation to the person submitting such for correction.


F. Payment for Representation by Non-Staff, Private Counsel

Compensation of counsel for capital cases shall be in accordance with the provisions of Title 21 U.S.C. § 848 (g)(10)(A) without regard to CJA hourly rates or compensation limitations contained in 18 U.S.C. §3006A. The court shall give due regard to any Judicial Conference or Ninth Circuit recommendations or policies concerning budgeting and management of costs in capital cases. Counsel shall meet with the court as directed to discuss budgetary issues and to assure compliance with cost related directives.