This document was prepared by the Institute for Law and Justice and supported by a
 contract with the Bureau of Justice Assistance, United States Department of Justice. The
 opinions expressed in this document are those of the authors and do not necessarily
 represent the official position or policies of the U.S. Department of Justice. The
 permission of copyright holders for the inclusion of copyright materials herein is gratefully
 acknowledged and such inclusion does not operate to waive in any context the rights of
 the copyright holders under the Copyright Act.

  Foreword

 The U.S. Department of Justice (DOJ) is committed to the principle that all Americans
 should have equal access to quality legal defense. As Attorney General Janet Reno has
 said, "I believe this effort is essential if our nation is to fulfill our obligation under Gideon
 v. Wainwright to provide every criminal defendant charged with a serious crime with
 competent counsel." Toward that end, Attorney General Reno has encouraged
 cooperative efforts among justice officials and the private bar "to strive to implement
 helpful standards for indigent defense standards that cover, among other things, skills,
 experience, and appropriate workloads for indigent defense offices." Implementation of
 standards governing all aspects of indigent defense systems can enhance the fairness and
 credibility of our justice system.

 The Compendium of Standards for Indigent Defense Systems brings together standards
 from a wide variety of sources and shows the different ways in which they address practice
 and procedure: administration of defense systems, attorney performance, capital case
 representation, appellate services, and juvenile justice defense. Included are standards and
 rules issued by national organizations; by state agencies and special interest groups,
 including bar associations, public defender organizations, and state high courts; and by
 local court systems.

 The standards presented here do not necessarily represent the only acceptable models.
 Rather, they have been collected to give practitioners and policymakers examples of the
 range of current "best practices" developed at the state and local level, along with the
 recommendations of several national standards-setting bodies.

 The Office of Justice Programs is making the Compendium available in hard copy, CD,
 and electronic formats. It is our hope that this resource will be used by State and local
 governments and agencies to compare standards from other jurisdictions and develop their
 own, thereby helping to assure the fulfillment of the Sixth Amendment and of Gideon v.
 Wainwright.

 Mary Lou Leary Nancy E. Gist
 Acting Assistant Attorney General Director
 Office of Justice Programs Bureau of Justice Assistance

  Acknowledgments

 The Compendium of Standards for Indigent Defense Systems was edited by Neal Miller of
 the Institute for Law and Justice and Peter Ohlhausen of Ohlhausen Research, Inc.
 Grateful appreciation goes to former Assistant Attorney General Laurie Robinson for her
 support of the project and to the following individuals for their contributions to the
 development and production of the Compendium:

 Advisory Board Members
 Ms. Marea Beeman, Vice President, The Spangenberg Group
 Professor Adele Bernhard, Pace University School of Law
 Mr. Larry Landis, Director, Indiana Public Defender Council
 Mr. Jim Neuhard, State Appellate Defender, State of Michigan
 Mr. Paul Petterson, Indigent Defense Counsel, National Association of Criminal Defense
 Lawyers
 Ms. Patti Puritz, Director, Juvenile Justice Center, American Bar Association
 Ms. Jo-Ann Wallace, Chief Counsel, National Legal Aid and Defender Association
 Mr. Scott Wallace, Director, Defender Legal Services, National Legal Aid and Defender
 Association
 Professor Richard Wilson, Washington College of Law, The American University

 Institute for Law and Justice Staff
 Edward Connors, President
 Joan Peterschmidt, Senior Project Management Associate

 Office of Justice Programs Staff
 Arnold J. Hopkins, Office of the Assistant Attorney General, Office of Justice Programs
 Kristine Orlando, Grants Program Specialist, Bureau of Justice Assistance

  Contents

 Introduction
 List of Standards and Table of Key Elements
 A. General
 1. Need for Standards
 2. Need to Ensure Quality/Effective Legal Services
 3. Insufficiency of Minimum Criminal Defense Standards
 B. Counsel Appointment
 1. Method of Appointment
 2. Trial Attorney Qualifications/Experience
 3. Appeals Attorney Qualifications/Experience
 4. Postconviction Attorney Qualifications/Experience
 5. Monitoring of Performance and Removal from Roster
 6. Requirement for Training
 C. Plan Elements
 1. Requirement for a Formal Plan
 2. Provision for Support Services
 3. Related Standards
 D. Financial
 1. Client Eligibility
 2. Attorney Compensation Rate
 E. Workload
 1. Requirement That Workload Not Be Excessive
 2. Specification of the Number of Attorneys per Case
 F. Attorney Performance: Pretrial
 1. Requirement for Performance Standards
 2. Need to Prepare As If Death Penalty to Be Sought
 3. Theory of Case
 4. Independent Investigation
 5. Close Contact with Client
 6. Pretrial Motions
 7. Plea Negotiations
 8. Need to Inform Client of Plea Options
 9. Explanation of Plea Contents and Implications
 G. Attorney Performance: Trial
 1. Preparing for Voir Dire
 2. Preserving Objections to Error
 3. Establishing a Plan to Avoid Death Sentence
 H. Attorney Performance: Sentencing
 1. Preparing for Sentencing
 2. Conducting Sentencing Investigation
 3. Considering Own Sentencing Report
 4. Preparing for Prosecutor Arguments at Sentencing
 5. Considering Full Scope of Defense Arguments
 I. Attorney Performance: Postjudgment
 1. Trial Counsel Duties
 2. Appellate Counsel Duties
 3. Postconviction Counsel Duties
 4. Clemency Counsel Duties
 5. Related Standards

  Introduction
 The Compendium of Standards for Indigent Defense Systems presents national, state, and
 local standards relating to five major aspects of indigent defense:
  Administration of defense systems (Volume I)
  Attorney performance (Volume II)
  Capital case representation (Volume III)
  Appellate representation (Volume IV)
  Juvenile justice defense (Volume V)
 These standards are non-case specific statements that help policymakers assess the
 adequacy or appropriateness of the provision of defense services to indigent
 defendants. Some standards are aspirational, that is, a goal for the future; other
 standards are enforced by operating or funding agencies. The standards and rules
 collected here were issued by national organizations; state agencies; bar
 associations; public defender agencies; state high courts; and local court or bar
 associations.
 The Compendium is intended to be useful for persons preparing to establish,
 review, or improve a public defense program or system. It should also be useful
 for persons dealing with funding sources; for agencies or organizations that are
 developing standards governing either criminal defense systems or individual
 attorney performance; and for academics and courts that need a reference point.
 Sponsorship and Development
 The Compendium was commissioned by the Bureau of Justice Assistance in the
 Office of Justice Programs of the United States Department of Justice. It was
 developed by the staff of the Institute for Law and Justice with guidance from an
 advisory board of practitioners and academics in the field of criminal defense
 systems. The assistance of the Spangenberg Group is also gratefully
 acknowledged, especially in helping identify state and local standards for inclusion
 in the Compendium.

  Methodology
 Once a standard was identified, ILJ staff sought permission from the sponsoring
 agency to reprint the standard here. The intent of the Compendium was to be as
 inclusive as possible. No effort was made to include only the "best" standards. If
 any standards have been left out, we apologize to the standards' sponsors.
 Each volume lists specific topics, such as provision of training or the need for
 adequate facilities, and then presents all the standards relevant to those topics. By
 and large, the selection of topics followed the topical headings used in the
 standards themselves.
 The materials included in the Compendium go beyond standards themselves. In
 several instances, we have included court rules and agency operational policies that
 are the functional equivalent of standards. The inclusion of such materials points
 to the need to put standards into context. At the state level, standards do not exist
 by themselves. Their content is often shaped by state legislation and court rules,
 either of which may have been the force requiring the development of the
 standards. Thus, to understand state and local standards, some knowledge of the
 governing state law is required. By necessity, any state law that creates a defense
 services delivery mechanism also treats the issues of governance, structure,
 jurisdiction, funding, and many other topics often covered by standards. While this
 Compendium of Standards for Indigent Defense Systems includes a limited review
 of state laws, an exhaustive review is beyond its reach.
 Implicit in the standards are the ethical requirements expected of all attorneys in all
 types of cases. In a sense, the standards are but commentary to certain overriding
 ethical principles: "A lawyer shall provide competent representation to a client.
 Competent representation requires the legal knowledge, skill, thoroughness, and
 preparation reasonably necessary for this representation" (ABA Model Rules of
 Professional Conduct 1.1, adopted 1983). Further, as the Model Code of
 Professional Responsibility (Canon 7) directs, "A lawyer should represent a client
 zealously within the bounds of the law." What the standards do is identify how
 those principles can be achieved and measured in the indigent defense setting, no
 matter what type of indigent defense system is used.
 These standards may be used either to evaluate an existing system (consisting of
 public defenders, contract firms, private assigned counsel, or a combination of
 such systems) or to compare or consider replacing one type of system with
 another.
 The standards allow funders to determine whether providers of defense services
 are performing effectively and efficiently. For the clients, who can neither choose
 nor readily change their attorneys, these standards provide some measure of
 assurance that their lawyers will provide high-quality, zealous representation.
 Finally, these standards inform both funders and attorneys what services are
 required and what services need to be funded.
 State Legislation, Court Rules, and Standards Relating to Capital
 Case Representation Experience and Training
 E = Experience requirement; T = Training requirement

 S
 t
 a
 t
 e

 L
 a
 w

 Rule
 Standa
 rds/
 Guidel
 ines

 State Capital Defender
 Agency
 No
 Dea
 th
 Pen
 alty

 A
 L

 A
 K

 Yes

 A
 Z

 Yes:
 E,T

 A
 R

 Public Defender
 Commission.
 Yes: E, T

 C
 A

 Yes:
 E
 Appea
 ls/
 Postc
 onvict
 ion

 State Public Defender
 handles appeals;
 Habeas Corpus Center
 handles post-conviction.
 Court rule applies to
 both.

 C
 O

 Public Defender.
 Practice is to appoint
 experienced, competent
 attorneys for trial and
 appeal

 C
 N

 Public Defender.
 Practice is E, T

 D
 E

 Public Defender.
 Civil service rules
 require experience;
 practice is to appoint
 attorneys experienced in
 capital cases

 D
 C

 Yes

 F
 L
 Y
 e
 s
 :
 E
 Yes
 soon
 E, T

 Post-Conviction Center
 (3 regional).
 Uses proposed
 Supreme Court rule for
 hires

 G
 A

 Yes:
 E, T
 Yes:
 E, T
 Multicounty Public
 Defender. Yes: E, T

 H
 A

 Yes

 I
 D

 Yes:
 E, T
 Trial/
 Appea
 l

 Appellate Public
 Defender.
 Court rule applies to
 office

 I
 L

 Appellate Defender.
 Practice is for
 experience

 I
 N

 Yes:
 E, T
 Trial/
 Appea
 l
 Yes:
 E
 Public Defender.
 (handles postconviction)

 I
 A

 Yes

 K
 S
 Y
 e
 s
 :
 E
 ,
 T

 Yes:
 E, T
 Trial/
 Appea
 l
 Indigent Defense
 Services.
 No policy; practice is for
 experience

 K
 Y

 Department of Public
 Advocacy, special unit.
 Policy: goal is to meet
 ABA standard

 L
 A

 Yes:
 E, T
 Yes:
 E, T
 Trial/
 Appea
 l

 M
 E

 Yes

 M
 D

 Public Defender, special
 unit.
 Uses list of experienced
 attorneys

 M
 A

 Yes

 M
 I

 Yes

 M
 N

 Yes

 M
 S

 Public Defender
 Authorized

 M
 O

 Yes:
 E, T

 Public Defender
 System.
 Court rule applies to
 contract attorneys. Pay
 classification scheme
 requires experienced
 attorneys in special unit

 M
 T

 Yes:
 E, T
 Trial/
 Postc
 onvict
 ion

 Appellate Defense
 Commission.
 Court rule applies

 N
 E

 Commission has own
 standards.
 Yes: E Trial/Appeal

 N
 V

 Yes:
 E

 Public Defender.
 Court rule applies

 N
 H

 Public Defender.
 No policies

 N
 J

 Public Defender.
 No policies; practice is
 to require experience

 N
 M

 Public Defender.
 Yes: Use ABA/NLADA
 for special unit and
 contract

 N
 Y

 Yes:
 E, T
 Trial/
 Appea
 l/
 Postc
 onvict
 ion

 Capital Defender's
 Office.
 Policy requires training;
 court rule also applies

 N
 C

 Yes:
 E

 Appellate Defender.
 No policy.
 Indigent Defense
 Services Commission
 adopted policy for
 trial/appeal/postconvicti
 on experience

 N
 D

 Yes

 O
 H
 Y
 e
 s
 :
 E
 Yes:
 E

 Public Defender.
 Court rule applies

 O
 K
 -

 Indigent Defense
 System.
 Special trial unit

 O
 R

 Yes:
 E, T
 Indigent Defense
 Services Division.
 Yes: E, T
 Trial/Appeal/Postconvict
 ion

 Public Defender
 (Appellate).
 Has special unit; staff
 chosen based on length
 of experience and
 subjective measures

 

 P
 A

 R
 I

 Yes

 S
 C
 P
 o
 s
 t
 c
 o
 n
 v
 ic
 ti
 o
 n
 :.
 E
 ,
 T

 Office of Appellate
 Defense.
 No policies; special unit

 S
 D

 T
 N

 Yes:
 E, T
 Appea
 l/
 Postc
 onvicti
 on

 Postconviction
 Defender.
 Court rule applies per
 commission policy to
 director only.

 T
 X

 U
 T

 Yes:
 E, T

 V
 T

 Yes

 V
 A

 Yes:
 E, T
 Trial/A
 ppeal

 W
 A

 Yes: E

 W
 V

 Yes

 W
 I

 Yes

 W
 Y

 Public Defender.
 No policies; special trial
 unit being established

  List of Standards and Table of Key Elements
 Standards Included
 National
 Conference of Chief Justices, Resolution XVII: Competence of Counsel in Capital Cases, 1995
 American Bar Association, Guidelines for the Appointment and Performance of Counsel
 in Death Penalty Cases, 1989
 American Bar Association, Standards for Criminal Justice: Providing Defense Services,
 1992
 Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases:
 Recommendations Concerning the Cost and Quality of Defense Representation, 1999
 National Legal Aid and Defender Association, Defender Training and Development
 Standards, 1997
 National Legal Aid and Defender Association, Standards for the Appointment and
 Performance of Counsel in Death Penalty Cases, 1988
 State and Local
 Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent
 Defense Programs, 1989
 Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-
 Capital Cases, 1995
 Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations, 1994
 Louisiana Indigent Defender Board, Standards on Indigent Defense, 1995
 Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in
 Capital and Non-Capital Cases, 1996
 New York Court of Appeals, Standards for Appellate Counsel in Capital Cases, 1998
 New York City Indigent Defense Organization Oversight Committee, General
 Requirements for All Organized Providers of Defense Services to Indigent
 Defendants, 1997
 Ohio Public Defender, Standards and Guidelines for Appointed Counsel Reimbursement
 (2d), 1996
 Virginia Public Defender Commission, Standards for the Qualifications of Appointed
 Counsel in Capital Cases, 1999
 Washington Defender Association, Standards for Public Defense Services, 1989
 Key Elements

 National Standards
 State and Local Standards

Topic

Standard
 Conf.
 Chief
 Justices

 ABA
 Federal
 Judicial
 Confer-
 ence
 NLADA
 Death
 Penalty
 Cases

 GA

 IN

 KS

 LA

 NE

 NY
 Court

 NY
 City

 OH

 VA

 WA

 A. General

 Need for
 standards
 4

 4

 Need to
 ensure quality/
 effective legal
 services

 4

 4

 4
 4

 Insufficiency
 of minimum
 criminal def.
 standards

 4

 4

 4

 B. Counsel Appointment

 Method of
 appointment

 4

 4

 4

 4

 Trial attorney
 qualifications/
 experience

 4
 4
 4
 4
 4
 4
 4
 4

 4

 4
 4

 Appeals atty.
 qualifications/
 experience

 4
 4
 4

 4
 4
 4
 4
 4

 4

 Postconviction
 atty. quals/
 experience

 4
 4
 4

 4

 4
 4

 4

 Monitoring of
 performance
 and removal
 from roster

 4

 4

 4

 4

 Requirement
 for training

 4
 4
 4

 4

 4

 

 National Standards
 State and Local Standards

Topic

Standard
 Conf.
 Chief
 Justices

 ABA
 Federal
 Judicial
 Confer-
 ence
 NLADA
 Death
 Penalty
 Cases

 GA

 IN

 KS

 LA

 NE

 NY
 Court

 NY
 City

 OH

 VA

 WA

 C. Plan Elements

 Requirement
 for a formal
 plan

 4

 4

 Provision for
 support
 services

 4
 4
 4

 4

 Related
 standards

 4

 D. Financial

 Client
 eligibility

 4

 Attorney
 compensation
 rate

 4
 4
 4
 4

 4

 E. Workload

 Requirement
 that workload
 not be
 excessive

 4

 4
 4

 Specification
 of the number
 of attorneys
 per case

 4

 4

 4
 4

 4

 

 National Standards
 State and Local Standards

Topic

Standard
 Conf.
 Chief
 Justices

 ABA
 Federal
 Judicial
 Confer-
 ence
 NLADA
 Death
 Penalty
 Cases

 GA

 IN

 KS

 LA

 NE

 NY
 Court

 NY
 City

 OH

 VA

 WA

 F. Attorney Performance: Pretrial

 Requirement
 for
 performance
 stds

 4

 4

 Prepare as if
 death penalty
 to be sought

 4

 4

 4

 Formulate
 theory of case

 4

 4

 4

 Conduct
 independent
 investigation

 4

 4

 4

 Maintain close
 contact with
 client

 4

 4

 4

 Consider filing
 pretrial
 motions

 4

 4

 4

 Explore plea
 negotiations

 4

 4

 4

 Inform client
 of plea options

 4

 4

 4

 Fully explain
 plea contents
 and
 implications

 4

 4

 4

 G. Attorney Performance: Trial

 Prepare for voir
 dire

 4

 4

 4

 Preserve
 objections to
 error

 4

 4

 4

 Establish plan
 for avoiding
 death sentence

 4

 4

 

 National Standards
 State and Local Standards

Topic

Standard
 Conf.
 Chief
 Justices

 ABA
 Federal
 Judicial
 Confer-
 ence
 NLADA
 Death
 Penalty
 Cases

 GA

 IN

 KS

 LA

 NE

 NY
 Court

 NY
 City

 OH

 VA

 WA

 H. Attorney Performance: Sentencing

 Prepare for
 sentencing

 4

 4

 4

 Conduct
 sentencing
 investigation

 4

 4

 Consider own
 sentencing
 report

 4

 4

 4

 Prepare for
 prosecutor
 arguments at
 sentencing

 4

 4

 4

 Consider full
 scope of
 defense
 arguments

 4

 4

 4

 I. Attorney Performance: Postjudgment

 Trial counsel
 duties in post
 judgment

 4

 4

 4

 Appellate
 counsel duties

 4

 4

 Post-conviction
 counsel duties

 4

 4

 Clemency
 counsel duties

 4

 4

 Related
 standards

 4

 4

  A. General
 The following topics are covered in this section:
 1. Need for standards
 2. Need to ensure quality/effective legal services
 3. Insufficiency of minimum criminal defense standards
 Also included is the Conference of Chief Justices resolution on competence of counsel in
 capital cases.

  1. Need for Standards
 Commentary. The need for standards may seem obvious to some, but it
 nonetheless needs explanation to many others. The Chief Justices' resolution and
 the NLADA Death Penalty Case Standards take very different paths to defining the
 need for standards. See also "Purpose of Standards" in the other volumes of this
 compendium.
 Conference of Chief Justices, Resolution XVII: Competence of Counsel in
 Capital Cases
 Whereas, the Conference of Chief Justices has long supported legislation that would
 place reasonable limits on federal habeas corpus review of state convictions, including
 capital cases; and
 Whereas, Congress is presently considering changes in the federal habeas corpus procedures
 which would substantially limit review of state proceedings, including capital cases; and
 Whereas, quality representation and competency of counsel has long been a major subject of
 federal habeas court litigation, particularly in capital cases; and
 Whereas, providing quality representation to defendants facing loss of liberty or life is essential
 to fundamental due process and the speedy and final resolution of judicial proceedings;
 and
 Whereas, the development, promulgation and implementation of standards and procedures for
 quality representation in state courts is a state responsibility; and
 Whereas, it appears that the numbers of defendants facing potential death penalty sanctions are
 burgeoning and the energies and resources of the volunteer attorneys, public defenders
 and death penalty resource centers who have provided the bulk of representation for these
 defendants over the past decade have largely been exhausted;
 Now, therefore, be it resolved that the Conference urges the judicial leadership of each state in
 which the death penalty is authorized by law to:
  Initiate a broad-based, interdisciplinary planning program to establish standards
 and a process that will assure the timely appointment of competent counsel, with
 adequate resources, to represent defendants in capital cases at each stage of such
 proceedings; and
  Cooperate with other states and the National Center for State Courts in developing
 a national clearinghouse for joint assistance in developing procedures for recruiting
 and compensating competent counsel in capital cases; and
 Be it further resolved that the national Center shall report biannually to the Conference of
 Chief Justices and the Conference of State Court Administrators concerning activity that
 has occurred pursuant to this Resolution.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 3.1 Legal Representation Plan
 a. The authority to recruit and select competent attorneys to provide representation in
 capital cases may be centralized in the defender office or assigned counsel program of
 the jurisdiction. The defender office or assigned counsel program should adopt
 Standards and procedures for the appointment of counsel in capital cases consistent
 with these Standards, and perform all duties in connection with the appointment
 process as set forth in these Standards.
 b. In jurisdictions where it is not feasible to centralize the tasks of recruiting and selecting
 competent counsel for capital cases in a defender office or assigned counsel program,
 the legal representation plan should provide for a special appointments committee to
 consist of no fewer than five attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction;
 ii. have practiced law in the field of criminal defense for not less than five years;
 iii. have demonstrated knowledge of the specialized nature of practice involved in
 capital cases;
 iv. are knowledgeable about criminal defense practitioners in the jurisdiction; and
 v. are dedicated to quality legal representation in capital cases.
 The committee should adopt Standards and procedures for the appointment of counsel in
 capital cases, consistent with these Standards, and perform all duties in connection with
 the appointment process.

 Standard 11.1 Establishment of Performance Standards
 a. The appointing authority should establish Standards of performance for counsel
 appointed in death penalty cases.
 b. The Standards of performance should include, but should not be limited to, the specific
 Standards set out in Standards 11.3 through 11.9.
 c. The appointing authority should refer to the Standards of performance when assessing
 the qualification of attorneys seeking to be placed on the roster from which
 appointments in death penalty cases are to be made (Standard 4.1) and in monitoring
 the performance of attorneys to determine their continuing eligibility to remain on the
 roster (Standard 7.1).

  2. Need to Ensure Quality/Effective Legal Services
 Commentary. Another way to define the need for standards is to focus on the
 purpose of counsel, especially on able counsel. The four sets of standards below
 discuss both quality legal representation and ensuring the right to counsel through
 use of standards.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 1.1 Objective
 The objective in providing counsel in cases in which the death penalty is sought should be
 to ensure that quality legal representation is afforded to defendants eligible for the
 appointment of counsel during all stages of the case.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 1.1 Objective
 The objective in providing counsel in cases in which the death penalty is sought should be
 to ensure that quality legal representation is afforded to defendants eligible for the
 appointment of counsel during all stages of the case.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Purpose and Scope of Standards. The following standards are designed to ensure that
 the constitutional right to the effective representation by counsel is provided to indigent
 persons accused of capital crimes. The certification process described herein is designed
 to provide for a systematic and publicized method for distributing assignments in capital
 cases as widely as possible among qualified members of the bar and providing for the
 largest possible pool of certified counsel.
 These standards address principles of eligibility and certification of trial and appellate
 counsel involved in the defense of indigent clients accused of capital crimes, including
 educational requirements, workload standards, and support.

  Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard I. Policy Statement: Objective of the Nebraska Commission on Public
 Advocacy
 The objective in providing counsel in cases in which the death penalty is sought should be
 to ensure that quality legal representation is afforded to defendants eligible for the
 appointment of counsel during all stages of the case.

  3. Insufficiency of Minimum Criminal Defense Standards

 Commentary. As the Nebraska standards state, "Death is different." This difference
 requires the establishment of standards specifically drawn with death penalty cases
 in mind.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.2 Minimum Standards Not Sufficient
 A. Minimum standards that have been promulgated concerning representation of
 defendants in criminal cases generally, and the level of adherence to such standards
 required for non-capital cases, should not be adopted as sufficient for death penalty
 cases.
 B. Counsel in death penalty cases should be required to perform at the level of an
 attorney reasonably skilled in the specialized practice of capital representation,
 zealously committed to the capital case, who has had adequate time and resources for
 preparation.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.2 Minimum Standards Not Sufficient
 a. Minimum Standards that have been promulgated concerning representation of
 defendants in criminal cases generally, and the level of adherence to such Standards
 required for non-capital cases, should not be adopted as sufficient for death penalty
 cases.
 b. Counsel in death penalty cases should be required to perform at the level of an
 attorney reasonably skilled in the specialized practice of capital representation,
 zealously committed to the capital case, who has had adequate time and resources for
 preparation.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 III. Operating Policies and Procedures
 E. Minimum Standards Required
 "Death is different," and all rules established for the protection of the capital defendant
 should be strictly enforced. The defense of death penalty cases is an evolving practice and
 counsel should refer to state and federal death penalty training and practice manuals for
 preparation and trial of death penalty cases. When the courts are not likely to provide the
 proper enforcement of the rules sua sponte, attorneys must seek to enforce the rules, or
 their clients will die. The minimal level of attorney competence that may be accepted as
 sufficient in some jurisdictions in non-capital cases can be fatally inadequate in death
 penalty cases. For example, attorney ignorance or oversight will not constitute cause for
 failure to meet the exhaustion requirements of federal habeas corpus, unless the attorney's
 failures have been so egregious as to meet the current standard of constitutionally
 ineffective assistance of counsel. Under this rule, otherwise reversible error will be
 ignored by the court; the capital client, rather than serving an improperly imposed but
 unreviewable prison term because of counsel's error, will die. To ensure that indigent
 defendants will not die for, and their attorneys will not have to live with, such error, the
 standards of performance established by the appointing authority under Guideline 11.1
 should include requirements that all aspects of representation be intensified in a capital
 case.

 VII. Performance Standards for Counsel in Capital Cases
 Minimum standards that have been promulgated concerning representation of defendants
 in criminal cases generally, and the level of adherence to such standards required for non-
 capital cases, are not sufficient for death penalty cases. Counsel in death penalty cases
 must perform at the level of an attorney reasonably skilled in the specialized practice of
 capital representation, zealously committed to the capital case, who has had adequate time
 and resources for preparation. See ABA Guideline 11.2.

  B. Counsel Appointment
 Ensuring qualified counsel is the first purpose of capital case representation standards (see
 supra). This leads then to standards relating to how counsel are appointed, using what
 qualification standards.
 The following topics are included in this section:
 1. Method of appointment
 2. Trial attorney qualifications/experience
 3. Appeals attorney qualifications/experience
 4. Postconviction attorney qualifications/experience
 5. Monitoring of performance and removal from roster
 6. Requirement for training
 Compare the standards below to those found in Compendium Volume I,
 "Standards for the Administration of Defense Services," especially the requirement
 that there be a system or plan. See also "Plan Elements" infra in this volume.

  1. Method of Appointment
 Commentary. How counsel is appointed determines, in part, who is appointed to
 represent defendants in capital cases. The several standards here include those for
 screening for qualifications, roster of attorneys, distributing assignments to all
 members of the roster, and locus of appointment authority (e.g., court).

 Although many local jurisdictions have special qualifications for attorneys in capital
 cases, very few also have special appointment procedures. But see Cobb County
 (Georgia) Indigent Defense Program Guidelines, Article II, Section 1, "Method of
 Appointment in Murder Cases," requiring trial judge or chief judge approval of any
 defense counsel selected by the program administrator.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 4.1 Selection of Counsel
 A. The legal representation plan should provide for a systematic and publicized method
 for distributing assignments in capital cases as widely as possible among qualified
 members of the bar.
 B. The appointing authority should develop procedures to be used in establishing two
 rosters of attorneys who are competent and available to represent indigent capital
 defendants. The first roster should contain the names of attorneys eligible for
 appointment as lead defense counsel for trial, appeal or postconviction pursuant to the
 qualification requirements specified in Guideline 5.1; the second roster should contain
 the names of attorneys eligible for appointment as assistant defense counsel for trial,
 appeal or postconviction pursuant to the qualification requirements specified in the
 same Guideline.
 C. The appointing authority should review applications from attorneys concerning their
 placement on the roster of eligible attorneys from which assignments are made, as
 discussed in subsection (b). The review of an application should include a thorough
 investigation of the attorney's background, experience, and training, and an
 assessment of whether the attorney is competent to provide quality legal
 representation to the client pursuant to the qualification requirements specified in
 Guideline 5.1 and the performance standards established pursuant to Guidelines 11.1
 and 11.2. An attorney's name should be placed on either roster upon a majority vote
 of the committee.
 D. Assignments should then be made in the sequence that the names appear on the roster
 of eligible attorneys. Departures from the practice of strict rotation of assignments
 may be made when such departure will protect the best interests of the client. A
 lawyer should never be assigned for reasons personal to the committee members
 making assignments.
 In jurisdictions where a defender office or other entity by law receives a specific portion of
 or all assignments, the procedures in (b) through (d) above should be followed for cases
 which the defender office or other entity cannot accept due to conflicts of interest or other
 reasons.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 4.1 Selection of Counsel
 a. The legal representation plan should provide for a systematic and publicized method
 for distributing assignments in capital cases as widely as possible among qualified
 members of the bar.
 b. The appointing authority should develop procedures to be used in establishing two
 rosters of attorneys who are competent and available to represent indigent capital
 defendants. The first roster should contain the names of attorneys eligible for
 appointment as lead defense counsel for trial, appeal or postconviction pursuant to the
 qualification requirements specified in Standard 5.1; the second roster should contain
 the names of attorneys eligible for appointment as co-counsel for trial, appeal or
 postconviction pursuant to the qualification requirements specified in the same
 Standard.
 c. The appointing authority should review applications from attorneys concerning their
 placement on the roster of eligible attorneys from which assignments are made, as
 discussed in subsection (b). The review of an application should include a thorough
 investigation of the attorney's background, experience, and training, and an
 assessment of whether the attorney is competent to provide quality legal
 representation to the client pursuant to the qualification requirements specified in
 Standard 5.1 and the performance Standards established pursuant to Standards 11.1
 and 11.2. An attorney's name should be placed on either roster upon a majority vote
 of the committee.
 d. Assignments should then be made in the sequence that the names appear on the roster
 of eligible attorneys. Departures from the practice of strict rotation of assignments
 may be made when such departure will protect the best interests of the client. A
 lawyer should never be assigned for reasons personal to the committee members
 making assignments.
 e. In jurisdictions where a defender office or other entity by law receives a specific
 portion of all assignments, the procedures in (b) through (d) above should be followed
 for cases which the defender office or other entity cannot accept due to conflict of
 interest or other reasons.

  Kansas Board of Indigents' Defense Services, Permanent Administrative
 Regulations
 105.3.12 Appointments in Capital Cases
 (a) In each case in which the death penalty may be imposed and the defendant is unable to
 afford counsel, the court shall appoint the capital defender to represent the defendant.
 (1) Subject to [Kansas law], the court may appoint co-counsel from the capital
 appointments panel list to represent the defendant in accordance with the system
 established by these regulations for providing legal defense services for indigent
 persons charged with capital felonies. The court, however, shall not appoint any
 attorney as co-counsel without prior notice to the chief capital defender and the
 board.
 (2) The court shall not appoint any attorney to provide representation in a capital
 felony without prior notice to the chief capital defender.
 (3) Eligibility to serve on the capital appointments panel shall be limited to attorneys
 who have been screened pursuant to [Kansas law].
 (b) The court shall appoint counsel for any indigent person accused of homicide from
 panel lists approved by the board. The court shall not appoint any attorney to provide
 representation to an indigent person accused of a felony without prior notice to the
 chief capital defender.
 New York Court of Appeals, Standards for Appellate Counsel in Capital
 Cases
 Standard 3. Creation of Court of Appeals Roster
 (a) Delivery to Screening Panel. The Capital Defender Office shall review each
 application to determine that it is complete. The Capital Defender Office shall deliver
 all completed applications, within 30 days of receipt, to the appropriate Screening
 Panel, together with a statement setting forth the status of the attorney's completion of
 the training required by section 5, below, and its recommendations to the Screening
 Panel with respect to whether the attorney is qualified for appointment as appellate
 counsel in a capital case. The appropriate Screening Panel shall be the panel in the
 judicial department in which the attorney has his or her principal office for the practice
 of law.
 (b) Designation by Screening Panel. Within 30 days of receipt of the application, each
 Screening Panel shall designate those attorneys deemed qualified for appointment as
 appellate counsel in a capital case, and shall report those designations to the Court of
 Appeals.
 (c) Waiver or Deferral of Required Submissions. If an attorney cannot provide each of
 the above items, the Screening Panel, upon demonstration that the attorney is capable
 of providing effective representation as appellate counsel in a capital case, and after
 consideration of the recommendation of the Capital Defender Office, may:
 (1) defer submission of any item(s) for a reasonable time, and in the interim designate
 the attorney as a qualified appellate counsel; or
 (2) waive such submission.
 (d) Establishment of the Roster. The Court of Appeals shall incorporate the names of
 each attorney found qualified by a Screening Panel into a single roster of attorneys
 qualified for appointment as appellate counsel in a capital case.
 Standard 4. Additions to Court of Appeals Roster
 (a) Requests for Reconsideration. Any attorney whose application for designation as
 qualified appellate counsel is rejected by a Screening Panel may apply to the Court of
 Appeals for reconsideration of his or her application pursuant to such procedures as
 may be prescribed by the Court of Appeals.
 (b) Determination by the Court of Appeals. The Court of Appeals shall review each
 such application pursuant to the criteria set forth in these standards, including
 consideration of the recommendations of the Capital Defender Office and of the
 Screening Panel, and may add that attorney to the roster of qualified appellate counsel
 if the Court deems the attorney qualified to serve as appellate counsel in a capital case.

  2. Trial Attorney Qualifications/Experience
 Commentary. Capital cases require experienced counsel. The standards set forth
 here call for minimal experiential qualifications only. The ABA and NLADA
 standards for attorney qualification in death penalty cases are virtually identical.

 Georgia and Kansas standards explicitly refer to the ABA standards, while the
 Louisiana, Nebraska, and Washington standards closely emulate them. The New
 York City standards add a new requirement that an attorney with capital case
 experience supervise and add higher experience requirements generally. The
 Vermont standards follow the ABA requirement in form but do not set experience
 requirements as high as the ABA does.

 In addition to the standards displayed here, many local standards also include
 attorney eligibility criteria. See, for example, Second Judicial Circuit of Florida,
 Conflict Attorney Policies (October 1992) Standard I(B) "Basic Qualifications: Capital
 Cases"; Alameda County Bar Association, Court Appointed Attorneys' Program,
 Rules and Regulations (1988), Rule F(1) "Experience Requirements for Capital
 Cases"; Circuit Conflict Committee, Eleventh Judicial Circuit of Florida, Policies and
 Procedures (1992) "Attorney Qualifications: Category IV Cases"; Montgomery
 County (Alabama), Capital Murder Appointment Procedures; Philadelphia General
 Court, Regulation 89-3, Rule 406, "Standards for Appointment of Counsel," Rule
 406-1, "Standards for Appointment in Homicide Cases"; Gwinnett Judicial Circuit
 (Georgia) Internal Operating Procedure 98-5, Part X Attorneys Guideline 10.1(A)
 "Qualification of Panel Attorneys in Felony-Life/Death Cases"; and Cobb County
 (Georgia) Indigent Defense Program Guidelines, Article 1, Section 4, "Murder,"
 Section 5, "Capital Cases." Some additional state-level standards include these:
 Nevada Supreme Court Rules, Rule 250 "Procedures in Capital Cases," Subsection
 (IV), "Qualification of Defense Counsel"; North Carolina State Bar, Rules and
 Regulations Relating to the Appointment of Counsel for Indigent Defendants in
 Certain Criminal Cases, Art. VII 7.3 (1995); Indiana Rules of Criminal Procedure,
 Criminal Rule 24: Capital Cases, (B) "Appointment of Qualified Trial Counsel"; Utah
 Rules of Criminal Procedure, Rule 8, "Appointment of Counsel," (b)(c); and
 Arkansas Public Defender Commission, Minimum Standards, "Attorney
 Qualifications: Certification Criteria, Attorney Eligibility: Death Cases" (1997).
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 5.1 Attorney Eligibility
 1. TRIAL
 A. Lead trial counsel assignments should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. are experienced and active trial practitioners with at least five years litigation
 experience in the field of criminal defense; and
 iii. have prior experience as lead counsel in no fewer than nine jury trials of serious
 and complex cases which were tried to completion, as well as prior experience as
 lead counsel or co-counsel in at least one case in which the death penalty was
 sought. In addition, of the nine jury trials which were tried to completion, the
 attorney should have been lead counsel in at least three cases in which the charge
 was murder or aggravated murder; or alternatively, of the nine jury trials, at least
 one was a murder or aggravated murder trial and an additional five were felony
 jury trials; and
 iv. are familiar with the practice and procedure of the criminal courts of the
 jurisdiction; and
 v. are familiar with and experienced in the utilization of expert witnesses and
 evidence, including, but not limited to, psychiatric and forensic evidence; and
 vi. have attended and successfully completed, within one year of their appointment, a
 training or educational program on criminal advocacy which focused on the trial
 of cases in which the death penalty is sought; and
 vii. have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 B. Trial co-counsel assignments should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. who qualify as lead counsel under paragraph (A) of this Guideline or meet the
 following requirements:
 a. are experienced and active trial practitioners with at least three years
 litigation experience in the field of criminal defense; and
 b. have prior experience as lead counsel or co-counsel in no fewer than three
 jury trials of serious and complex cases which were tried to completion, at
 least two of which were trials in which the charge was murder or aggravated
 murder; or alternatively, of the three jury trials, at least one was a murder or
 aggravated murder trial and one was a felony jury trial; and
 c. are familiar with the practice and procedure of the criminal courts of the
 jurisdiction; and
 d. have completed within one year of their appointment at least one training or
 educational program on criminal advocacy which focused on the trial of
 cases in which the death penalty is sought; and
 e. have demonstrated the necessary proficiency and commitment which
 exemplify the quality of representation appropriate to capital cases.
 C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial experience or extensive civil
 litigation experience, if it is clearly demonstrated to the appointing authority that
 competent representation will be provided to the capitally charged indigent defendant.
 Lawyers appointed under this paragraph shall meet one or more of the following
 qualifications:
 i. Experience in the trial of death penalty cases which does not meet the levels
 detailed in paragraphs A or B above;
 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 iii. The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of experienced
 death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent
 representation.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 1. Qualifications for Appointment
 a. Quality of Counsel. Courts should ensure that all attorneys appointed in federal death
 penalty cases are well qualified, by virtue of their prior defense experience, training
 and commitment, to serve as counsel in this highly specialized and demanding type of
 litigation. High quality legal representation is essential to assure fair and final verdicts,
 as well as cost-effective case management.
 b. Qualifications of Counsel. As required by statute, at the outset of every capital case,
 courts should appoint two counsel, at least one of whom is experienced in and
 knowledgeable about the defense of death penalty cases. Ordinarily, "learned counsel"
 should have distinguished prior experience in the trial, appeal, or postconviction
 review of federal death penalty cases, or distinguished prior experience in state death
 penalty trials, appeals, or postconviction review that, in combination with co-counsel,
 will assure high quality representation.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 5.1(1)
 The appointing authority should distribute assignments in capital cases to attorneys who
 possess the following qualifications:
 1. TRIAL
 A. Lead trial counsel assignments should be distributed to attorneys who:
 (i) are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 (ii) are experienced and active trial practitioners with at least five years litigation
 experience in the field of criminal defense; and
 (iii) have prior experience as lead counsel in no fewer than nine jury trials of serious
 and complex cases which were tried to completion, as well as prior experience as
 lead counsel or co-counsel in at least one case in which the death penalty was
 sought. In addition, of the nine jury trials which were tried to completion, the
 attorney should have been lead counsel in at least three cases in which the charge
 was murder or aggravated murder; or alternatively, of the nine jury trials, at least
 one was a murder or aggravated murder trial and an additional five were felony
 jury trials; and
 (iv) are familiar with the practice and procedure of the criminal courts of the
 jurisdiction; and
 (v) are familiar with and experienced in the utilization of expert witnesses and
 evidence, including, but not limited to, psychiatric and forensic evidence; and
 (vi) have attended and successfully completed, within one year of their appointment, a
 training or educational program on criminal advocacy which focused on the trial
 of cases in which the death penalty is sought; and
 (vi) have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 B. Trial co-counsel assignments should be distributed to attorneys who:
 (i) are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 (ii) who qualify as lead counsel under paragraph A of this Standard or meet the
 following requirements:
 a. are experienced and active trial practitioners with at least three years
 litigation experience in the field of criminal defense; and
 b. have prior experience as lead counsel or co-counsel in no fewer than three
 jury trials of serious and complex cases which were tried to completion, at
 least two of which were trials in which the charge was murder or aggravated
 murder; or alternatively, of the three jury trials, at least one was a murder or
 aggravated murder trial and one was a felony jury trial; and
 c. are familiar with the practice and procedure of the criminal courts of the
 jurisdiction; and
 d. have completed within one year of their appointment at least one training or
 educational program on criminal advocacy which focused on the trial of
 cases in which the death penalty is sought; and
 e. have demonstrated the necessary proficiency and commitment which
 exemplify the quality of representation appropriate to capital cases.
 C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial experience or extensive civil
 litigation experience, if it is clearly demonstrated to the appointing authority that
 competent representation will be provided to the capitally charged indigent defendant.
 Lawyers appointed under this paragraph shall meet one or more of the following
 qualifications:
 (i) Experience in the trial of death penalty cases which does not meet the levels
 detailed in paragraphs A or B above;
 (ii) Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 (iii) The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of
 experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide
 competent representation.
 Georgia Indigent Defense Council, Guidelines for the Operation of Local
 Indigent Defense Programs
 Guideline 2.4 Panel Attorney Programs

 (e) Cases in which the death penalty is sought shall be assigned only to attorneys of
 sufficient experience, skill and competence to render effective assistance of counsel to
 defendants in such cases. The American Bar Association "Guidelines for the
 Appointment and Performance of Counsel in Death Penalty Cases" may be referred to
 as a suggestion for the determination of the experience, skill and competence of the
 attorneys.
 Indiana Public Defender Commission, Standards for Indigent Defense
 Services in Non-Capital Cases
 Standard E. Appointment of Counsel
 The comprehensive plan shall provide for the appointment of trial counsel meeting the
 following qualifications.
 1. Murder. To be eligible to serve as appointed counsel in a case where the accused is
 charged with murder, an attorney shall:
 a. be an experienced and active trial practitioner with at least three (3) years of
 criminal litigation experience; and
 b. have prior experience as lead or co-counsel in no fewer than three (3) felony jury
 trials that were Class C felonies or higher which were tried to completion.
 Kansas Board of Indigents' Defense Services, Permanent Administrative
 Regulations
 Rule 105-3-2 Eligibility to Serve (a)

 (4) Each attorney assigned or appointed to the defense of any indigent person accused of a
 capital felony shall be a prequalified death penalty attorney. Each attorney shall be
 screened by the board to determine the attorney's qualifications to serve as defense
 counsel to an indigent person accused of a capital felony, pursuant to these regulations
 and "Guideline 5.4(1), Attorney Eligibility," as published in the 1989 version of the
 American Bar Association (ABA) "Guidelines for the Appointment and Performance
 of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the
 capital appointments panel shall be certified by the board.
 (5) Each attorney assigned or appointed to represent an indigent person who has been
 convicted of capital murder and who is under a sentence of death in the direct review
 of the judgment shall be prequalified by the board. Each attorney shall be screened by
 the board to determine the attorney's qualifications to serve as defense counsel to an
 indigent person who has been convicted of capital murder and who is under a sentence
 of death in the direct review of the judgment, pursuant to these regulations and
 "Guideline 5.1(1), Attorney Eligibility," as published in the 1989 version of the
 American Bar Association (ABA) "Guidelines for the Appointment and Performance
 of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the
 capital appointments appellate panel shall be certified by the board.
 (6) Each attorney assigned or appointed to represent an indigent person who has been
 convicted of capital murder and who is under a sentence of death in postconviction
 proceedings shall be prequalified by the board. Each attorney shall be screened by the
 board to determine the attorney's qualifications to serve as defense counsel to an
 indigent person who has been convicted of capital murder and who is under a sentence
 of death in the direct review of the judgment, pursuant to these regulations and
 "Guideline 5.1(III), Attorney Eligibility," as published in the 1989 version of the
 American Bar Association (ABA) "Guidelines for the Appointment and Performance
 of Counsel in Death Penalty Cases." Each attorney who is eligible to serve on the
 capital appointments postconviction panel shall be certified by the board.
 (7) To ensure compliance with these regulations in capital felony or homicide cases, each
 attorney assigned or appointed to the defense of any indigent person accused of a
 capital felony or a homicide shall be appointed from panel lists screened pursuant to
 these regulations and approved by the board.

 (b) Except for appointment of an attorney to provide representation for an indigent
 person accused of a capital felony or a homicide, an indigent person who has been
 convicted of capital murder and who is under a sentence of death in the direct
 review of the judgment or an indigent person who has been convicted of capital
 murder and who is under a sentence of death in postconviction proceedings, the
 judge may waive any of the above conditions if the attorney selected by the judge
 has sufficient training, resources, and experience to undertake the case in
 question.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part I. General Principles of Certification Eligibility. The following standards shall be
 applied to attorney certification under any part of this chapter:
 Standard 7-1.1. Eligibility. The attorney shall be familiar with the practice and
 procedure of the criminal courts of Louisiana and shall be a member in good standing
 of the Louisiana Bar or admitted to practice pro hac vice.
 Standard 7-1.2. Evidentiary Matters. The attorney shall be familiar with the use of
 expert witnesses and evidence, including, but not limited to, psychiatric and forensic
 evidence.
 Standard 7-1.3. Initial Training. Within one year of an initial application for
 certification under the standards of this Chapter, the attorney shall complete a
 minimum of 12 hours of Board-approved training primarily involving advocacy in the
 field of capital defense.
 Standard 7-1.4. Continuing Training. To maintain certification, counsel shall,
 every two years from the date of certification, successfully complete a minimum of 12
 hours of Board-approved training primarily involving advocacy in the field of capital
 defense.
 Part II. Trial Lead Counsel. To be certified to serve as trial lead counsel, an attorney shall
 also satisfy the following minimum standards.
 Standard 7-2.1. Eligibility Criteria. Trial lead counsel shall:
 (A) Be an experienced and active trial practitioner with at least five years of litigation
 experience;
 (B) Have prior experience as lead counsel in no fewer than nine jury trials tried to
 completion; of these nine jury trials, at least five must have involved felonies or
 two must have involved the charge of murder; and
 (C) Have prior experience as lead counsel or associate counsel in at least one case in
 which the death penalty was sought and was tried through the penalty phase or
 have prior experience as lead counsel or associate counsel in at least two cases in
 which the death penalty was sought and where, although resolved prior to trial or
 at the guilt phase, a thorough investigation was performed for a potential penalty
 phase.
 Part III. Trial Associate Counsel. To be certified to serve as trial associate counsel in a
 capital case, an attorney shall also satisfy the following minimum standards.
 Standard 7-3.1. Eligibility Criteria. Trial associate counsel shall:
 (A) Be an experienced and active trial or appellate practitioner with at least three
 years of litigation experience; and
 (B) Have prior experience as lead counsel in no fewer than three felony jury trials
 which were tried to completion, including service as lead or associate counsel in
 at least one homicide trial.

 Standard 7-6.2. Alternative Requirements; Trial Lead Counsel. An attorney
 seeking certification as trial lead counsel under Part VI of this Chapter, shall:
 (A) Satisfy Standards 7-1.1, 7-1.2, and 7-2.1(A) of this Chapter;
 (B) Substantially satisfy Standard 7-2.1(B) or 7-2.1(C); and
 (C) In the case of certification by the Louisiana Indigent Defender Board, the
 applicant, prior to the start of trial in a capital case he or she has been appointed
 to handle, must successfully complete a minimum of 12 hours of Board-approved
 training primarily involving advocacy in the field of capital defense.
 Standard 7-6.3. Alternative Requirements; Trial Associate Counsel. An attorney
 seeking certification as trial associate counsel under Part VI of this Chapter, shall:
 (A) Satisfy Standards 7-1.1, 7-1.2, and 7-3.1(A) of this Chapter;
 (B) Substantially satisfy Standard 7-3.1(B) of this Chapter; and
 (C) In the case of certification by the Louisiana Indigent Defender Board, the
 applicant, prior to the start of trial in a capital case he or she has been appointed
 to handle, must successfully complete a minimum of 12 hours of Board-approved
 training primarily involving advocacy in the field of capital defense.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard III. Operating Policies and Procedures

 C. Counsel Eligibility Standards
 The following classes of attorneys are created to set the minimum standards for
 counsel in capital and non-capital cases at trial, appellate, and postconviction stages.
 Class A: Counsel qualified as lead counsel in capital cases.
 Class B: Counsel qualified as co-counsel in capital cases.

 1. Qualifications for A
 1.1 Member of the Nebraska bar or admitted pro hac vice.
 1.2 Experienced and active in criminal defense with not less than five years experience
 in criminal litigation.
 1.3 Prior experience as lead counsel in at least ten jury trials of serious or complex
 cases tried to completion, including:
 (1) two murder cases as co-counsel and five felony jury trials of a Class III or
 higher felony, or
 (2) one murder trial in which the death sentence was sought, and five felony jury
 trials of Class III or higher felony.
 1.4 Experience in trial practice which includes the use of and challenge of psychiatric
 and other forensic experts, including, but not limited to ballistic, fingerprint,
 handwriting, DNA, pathologists, psychologists, and addictionologists.
 1.5. Demonstrates proficiency and commitment which exemplify the quality of
 representation appropriate to capital cases. This will be judged by a history of
 participation in criminal continuing legal education programs, membership and
 activity in professional associations supporting criminal defense practitioners, and
 reputation among criminal law practitioners.
 2. Qualifications for B
 2.1 Member of the Nebraska bar or admitted pro hac vice.
 2.2 Experienced and active in criminal defense with not less than three years
 experience in litigation of criminal defense.
 2.3 Prior experience as lead or co-counsel in:
 a. At least five jury trials of serious or complex cases tried to completion,
 including (1) one murder case or (2) two jury trials of Class III or higher
 felony.
 2.4 Demonstrates proficiency and commitment which exemplify quality of
 representation appropriate to capital cases. This will be judged by a history of
 participation in criminal continuing legal education programs, membership and
 activity in professional associations supporting criminal defense practitioners, and
 reputation among criminal law practitioners.

 4. Alternative Qualification
 The Chief Counsel may determine an attorney is qualified even though the
 attorney may not meet all qualifications above. The Chief Counsel may, in his/her
 discretion permit any counsel to participate in a given case. The Chief Counsel
 will look to the following factors in deciding whether to consider such a special
 request:
 4.1 Extensive criminal and/or civil trial experience;
 4.2 Clearly demonstrated ability to provide competent representation;
 4.3 Experience in death penalty trial not meeting standards above, such as work as
 counsel other than lead or co-counsel;
 4.4 Specialized postgraduate training in defense of persons accused in capital crimes,
 such as experience in a death penalty resource center or law school
 postconviction project;
 4.5 Availability of ongoing consultation support from experienced death penalty
 counsel.
 New York City Indigent Defense Organization Oversight Committee,
 General Requirements for All Organized Providers of Defense Services to
 Indigent Defendants
 Standard II. Qualification of Lawyers

 B. Evaluation Criteria
 1. Qualifications for Counsel

 (b) Specific Criteria for Assignment of Trial Counsel to Particular Categories of
 Cases

 (iii) Homicide Cases
 (1) If the defense organization is assigned homicide cases, in addition
 to requiring that lawyers meet all the requirements for handling
 felony cases, does it require additional experience, including prior
 experience examining expert witnesses, before certifying lawyers as
 qualified to handle homicide cases?
 (2) Does the defense organization require that lawyers conducting their
 first homicide trial be supervised by a lawyer who has previously
 tried homicide cases as lead or sole counsel?
 Specific Guideline:
 Each staff lawyer assigned by the defense organization to handle
 homicide cases without supervision must have had actual court
 experience in at least sixty criminal cases during the previous five
 years, involving at least:
 (i) thirty negotiated pleas, dismissals, or other non-trial dispositions,
 at least ten of which occurred postindictment;
 (ii) fifteen hearings in which oral testimony was taken and a decision
 was rendered;
 Virginia Public Defender Commission, Standards for the Qualifications of
 Appointed Counsel in Capital Cases
 A. TRIAL COUNSEL
 1. Court-appointed "lead counsel" must:
 a. Be an active member in good standing of the Virginia State Bar or admitted
 to practice pro hac vice.
 b. Have at least five years of criminal litigation practice with demonstrated
 competence.
 c. Have had, within the past two years, some specialized training in capital
 litigation.
 d. Have at least one of the following qualifications:
 i. Experience as "lead counsel" in the defense of at least one capital case;
 ii. Experience as "co-counsel" in the defense of at least two capital cases;
 iii. Experience as "lead counsel" (or as lead prosecutor) in at least five
 felony jury trials in Virginia courts involving crimes of violence which
 carry, upon conviction, a minimum sentence of at least five years
 imprisonment.
 e. Be familiar with the requisite court system, including specifically the
 procedural rules regarding timeliness of filings and procedural default.
 f. Have demonstrated proficiency and commitment to quality representation.
 2. Court-appointed "co-counsel" must:
 a. Meet all of the requirements of "lead counsel" except 1(b) and 1(d).
 Washington Defender Association, Standards for Public Defense Services
 Standard Fourteen. Qualification of Attorneys
 1. In order to assure that indigent accused receive the effective assistance of counsel to
 which they are constitutionally entitled, attorneys providing defense services should
 meet the following minimum professional qualifications:
 a. Satisfy the minimum requirements for practicing law in Washington as determined
 by the Washington Supreme Court; and
 b. Complete seven hours of continuing legal education within each calendar year in
 courses relating to their public defense practice.
 2. Trial attorneys' qualifications according to severity or type of case:
 a. Death Penalty Representation. Each attorney acting as lead counsel in a death
 penalty case shall meet the following requirements:
 1. The minimum requirements set forth in Section 1; and
 2. at least five years criminal trial experience; and
 3. have prior experience as lead counsel in no fewer than nine jury trials of
 serious and complex cases which were tried to completion; and
 4. have served as lead or co-counsel in at least one jury trial in which the death
 penalty was sought; and
 5. have completed at least one death penalty defense seminar within the
 previous two years.

  3. Appeals Attorney Qualifications/Experience
 Commentary. All of the several standards for trial attorney qualifications also set
 standards for appeals attorneys, except for the Georgia guidelines. Again, the ABA
 and NLADA standards are virtually identical and serve as the model for the states'
 standards.

 See also, Utah Rules of Criminal Procedure, Rule 8, "Appointment of Counsel," (d);
 Arizona Supreme Court Rules of Criminal Procedure, Rule 6.8, "Standards for
 Appointment of Counsel in Capital Cases," (c), "Appellate and Postconviction
 Counsel" (1996); Indiana Rules of Criminal Procedure Criminal Rule 24, "Capital
 Cases," (J), "Appointment of Appellate Counsel"; Philadelphia General Court
 Regulation 89-3, Rule 406, "Standards for Appointment of Counsel," Rule 406-2,
 "Appeals in Death Penalty Cases" (1996); and Second Judicial Circuit of Florida,
 Conflict Attorney Policies, Policy I, "Basic Qualification," (E) "Capital Appellate
 Division" (1997). The Montgomery (Alabama) Capital Murder Appointment
 Procedures, Section 12, call for trial attorneys to continue to represent their clients in
 capital cases through the direct appeal process.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 5.1 Attorney Eligibility
 II. APPEAL
 A. Lead appellate counsel assignments should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. are experienced and active trial or appellate practitioners with at least three years
 experience in the field of criminal defense; and
 iii. have prior experience within the last three years as lead counsel or co-counsel in
 the appeal of at least one case where a sentence of death was imposed, as well as
 prior experience within the last three years as lead counsel in the appeal of no
 fewer than three felony convictions in federal or state court, at least one of which
 was an appeal of murder or aggravated murder conviction; or alternatively, have
 prior experience within the last three years as lead counsel in the appeal of no
 fewer than six felony convictions in federal or state court, at least two of which
 were appeals of a murder or aggravated murder conviction; and
 iv. are familiar with the practice and procedure of the appellate courts of the
 jurisdiction; and
 v. have attended and successfully completed, within one year prior to their
 appointment, a training or educational program on criminal advocacy which
 focused on the appeal of cases in which a sentence of death was imposed; and
 vi. have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 B. Appellate co-counsel assignments may be distributed to attorneys who have less
 experience than attorneys who qualify as lead appellate counsel. At a minimum,
 however, appellate co-counsel candidates must demonstrate to the satisfaction of the
 appointing authority that they:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. have demonstrated adequate proficiency in appellate advocacy in the field of
 felony defense; and
 iii. are familiar with the practice and procedure of the appellate courts of the
 jurisdiction; and
 iv. have attended and successfully completed within two years of their appointment a
 training or educational program on criminal appellate advocacy.
 C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial and/or appellate experience or
 extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the
 appointing authority that competent representation will be provided to the capitally
 charged indigent defendant. Lawyers appointed under this paragraph shall meet one
 or more of the following qualifications:
 i. Experience in the trial and/or appeal of death penalty cases which does not meet
 the levels detailed in paragraphs A or B above;
 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 iii. The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of experienced
 death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent
 representation.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 1. Qualifications for Appointments

 c. Special Considerations in the Appointment of Counsel on Appeal. Ordinarily, the
 attorneys appointed to represent a death-sentenced federal appellant should include at
 least one attorney who did not represent the appellant at trial. In appointing appellate
 counsel, courts should, among other relevant factors, consider:
 i. the attorney's experience in federal criminal appeals and capital appeals;
 ii. the general qualifications identified in paragraph 1(a), above; and
 iii. the attorney's willingness, unless relieved, to serve as counsel in any
 postconviction proceedings that may follow the appeal.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 5.1
 II. APPEAL
 A. Lead appellate counsel assignments should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. are experienced and active trial or appellate practitioners with at least three years
 experience in the field of criminal defense; and
 iii. have prior experience within the last three years as lead counsel or co-counsel in
 the appeal of at least one case where a sentence of death was imposed, as well as
 prior experience within the last three years as lead counsel in the appeal of no
 fewer than three felony convictions in federal or state court, at least one of which
 was an appeal of murder or aggravated murder conviction; or alternatively, have
 prior experience within the last three years as lead counsel in the appeal of no
 fewer than six felony convictions in federal or state court, at least two of which
 were appeals of a murder or aggravated murder conviction; and
 iv. are familiar with the practice and procedure of the appellate courts of the
 jurisdiction; and
 v. have attended and successfully completed, within one year prior to their
 appointment, a training or educational program on criminal advocacy which
 focused on the appeal of cases in which a sentence of death was imposed; and
 vi. have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 B. Appellate co-counsel assignments may be distributed to attorneys who have less
 experience than attorneys who qualify as lead appellate counsel. At a minimum,
 however, assistant appellate attorney candidates must demonstrate to the satisfaction
 of the appointing authority that they:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. have demonstrated adequate proficiency in appellate advocacy in the field of
 felony defense; and
 iii. are familiar with the practice and procedure of the appellate courts of the
 jurisdiction; and
 iv. have attended and successfully completed within two years of their appointment a
 training or educational program on criminal appellate advocacy.
 C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial and/or appellate experience or
 extensive civil litigation and/or appellate experience, if it is clearly demonstrated to the
 appointing authority that competent representation will be provided to the capitally
 charged indigent defendant. Lawyers appointed under this paragraph shall meet one
 or more of the following qualifications:
 i. Experience in the trial and/or appeal of death penalty cases which does not meet
 the levels detailed in paragraphs A or B above;
 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 iii. The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of
 experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide
 competent representation.
 Indiana Public Defender Commission, Standards for Indigent Defense
 Services in Non-Capital Cases
 Standard F. Appointment of Appellate Counsel
 The comprehensive plan shall provide for the appointment of lead appellate counsel
 meeting the following qualifications.
 1. Murder and Class A or B felony. To be eligible to serve as appointed counsel in a
 case where the accused is charged with murder or a Class A or B felony, an attorney
 shall be an experienced and active trial or appellate practitioner with at least three (3)
 years experience in criminal litigation and have completed prior to appointment at least
 six (6) hours of training in appellate practice in a course approved by the Indiana
 Public Defender commission.

  Kansas Board of Indigents' Defense Services, Permanent Administrative
 Regulations
 Rule 105-3-2 Eligibility to Serve (a)

 (5) Each attorney assigned or appointed to represent an indigent person who has been
 convicted of capital murder and who is under a sentence of death in the direct
 review of the judgment shall be prequalified by the board. Each attorney shall be
 screened by the board to determine the attorney's qualifications to serve as
 defense counsel to an indigent person who has been convicted of capital murder
 and who is under a sentence of death in the direct review of the judgment,
 pursuant to those regulations and "Guideline 5.1(11), Attorney Eligibility," as
 published in the 1989 version of the American Bar Association (ABA)
 "Guidelines for the Appointment and Performance of Counsel in Death Penalty
 Cases." Each attorney who is eligible to serve on the capital appointments
 appellate panel shall be certified by the board.

 Rule 105-3-12 Appointments in Capital Cases

 (c) Appeals. The court shall appoint the state appellate defender to represent an indigent
 defendant in each appeal of a capital felony conviction in accordance with K.A.R.
 105-10-2.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part IV. Appellate Lead Counsel. To be certified to serve as lead counsel in the appeal of a
 capital case, an attorney shall also satisfy the following minimum standards.
 Standard 7-4.1. Eligibility Criteria. Unless certified in accordance with Part VI of
 this Chapter, appellate lead counsel shall:
 (A) Be familiar with the practice and procedure of the Louisiana Supreme Court in
 the appeal of capital cases;
 (B) Be an experienced and active trial or appellate practitioner with at least three
 years experience in the field of criminal defense;
 (C) Have prior experience within the last three years as lead counsel in the appeal of
 no fewer than three felony convictions in federal or state court; and
 (D) Have prior experience within the last three years as lead counsel or associate
 counsel in the appeal or postconviction application, in federal or state court, of at
 least one case where a sentence of death was imposed.
 Part V. Appellate Associate Counsel. To be certified to serve as associate counsel in the
 appeal of a capital case, an attorney shall also satisfy the following minimum standards.
 Standard 7-5.1. Eligibility Criteria. Unless certified in accordance with Part IV of
 this Chapter, appellate associate counsel:
 (A) Shall be familiar with the practice and procedure of the Louisiana Supreme Court
 in the appeal of capital cases; and
 (B) May have less experience than an attorney qualified to serve as lead appellate
 counsel, although such attorney shall have demonstrated adequate proficiency in
 appellate advocacy in the field of felony defense.
 Part VI. Alternative Certification Procedure. Notwithstanding Parts II through IV of this
 Chapter, a district court judge may move the Board to certify as trial lead counsel, trial
 associate counsel, or appellate lead counsel, an attorney who does not strictly satisfy the
 specific standards above.
 Standard 7-6.4. Alternative Requirements; Appellate Lead Counsel. An attorney
 seeking certification as appellate lead counsel under Part VI of this Chapter shall:
 (A) Satisfy Standards 7-1.1, 7-1.2, 7-4.1(A) and 7-4.1(B) of this Chapter;
 (B) Substantially satisfy Standard 7-4.1(C) or 7-4.1(D); and
 (C) In the case of certification by the Louisiana Indigent Defender Board, the
 applicant, prior to filing a brief in the appeal of a capital case he or she has been
 appointed to handle, must successfully complete a minimum of 12 hours of
 Board-approved training primarily involving advocacy in the field of capital
 defense.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard III. Operating Policies and Procedures
 C. Counsel Eligibility Standards

 5. APPEAL
 5.1 Lead appellate counsel assignments should be distributed to attorneys who:
 a. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 b. are experienced and active trial or appellate practitioners with at least five
 years experience in the field of criminal defense; and
 c. have five years experience in criminal litigation and criminal appeals as lead
 counsel or co-counsel in the appeal of at least one case where a sentence of
 death was imposed, as well as prior experience as lead counsel in the appeal
 of no fewer than three felony convictions in federal or state court, at least
 one of which was an appeal of a murder or aggravated murder conviction;
 or alternatively, have prior experience as lead counsel in the appeal of no
 fewer than six felony convictions in federal or state court, at least two of
 which were appeals of a murder or aggravated murder conviction; and
 d. are familiar with the practice and procedure of the appellate courts of the
 jurisdiction; and
 e. demonstrate proficiency and commitment exemplifying quality appropriate to
 serious criminal cases. This will be judged by a history of participation in
 criminal continuing legal education programs, membership and activity in
 professional associations supporting criminal defense practitioners, and
 reputation among criminal law practitioners.
 5.2 Appellate co-counsel assignments may be distributed to attorneys who have less
 experience than attorneys who qualify as lead appellate counsel. At a minimum,
 however, appellate co-counsel candidates must demonstrate the following:
 a. member of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 b. at least three years experience in the practice of law as an appellate lawyer.
 The appellate experience may include advising clients on questions or
 interpretations of law and/or administrative policies concerning criminal law,
 or serving as an attorney for state or federal appellate courts, or a
 combination of the above. The appellate attorney shall have knowledge of
 state and/or federal statutory and case law and constitutional provisions, the
 principles and practices of criminal law, judicial procedures and rules of
 evidence, the principles and practices of legal research, the procedures of
 trial, and the techniques of preparing and drafting legal documents and
 forms; and
 c. familiarity with the practice and procedure of the appellate courts of the
 jurisdiction; and
 d. demonstrates proficiency and commitment exemplifying quality appropriate
 to serious criminal cases. This will be judged by a history of participation in
 criminal continuing legal education programs, membership and activity in
 professional associations supporting criminal defense practitioners, and
 reputation among criminal law practitioners.
 5.3 Alternate Procedures: Appointments for lead and co-counsel assignments may
 also be distributed to persons with extensive criminal trial and/or appellate
 experience or extensive civil litigation and/or appellate experience, if it is clearly
 demonstrated to the appointing authority that competent representation will be
 provided to the capitally charged indigent defendant. Lawyers appointed under
 this paragraph shall meet one or more of the following qualifications:
 a. experience in the trial and/or appeal of death penalty cases which does not
 meet the levels detailed in paragraphs 1 or 2 above;
 b. specialized postgraduate training in the defense of persons accused of capital
 crimes;
 c. the availability of ongoing consultation support from experienced death
 penalty counsel.
 The Chief Counsel is to ensure that any lawyer representing an appointed indigent
 client will provide competent representation.
 New York Court of Appeals, Standards for Appellate Counsel in Capital
 Cases
 Standards for Appellate Counsel in Capital Cases
 1. Appellate Qualifications and Experience
 (a) Sole Appellate Counsel. To be eligible to be appointed as sole appellate counsel
 on direct appeal in a capital case, an attorney must demonstrate that he or she:
 (1) has at least five years of criminal trial or criminal appellate or postconviction
 experience, or has at least three years of concentrated criminal litigation
 experience;
 (2) is familiar with the practice and procedure of the trial and appellate courts of
 New York, including the New York Court of Appeals; and
 (3) also has had primary responsibility for the appeal of at least five felony
 convictions in any state or federal court, at least three of which were on
 behalf of the defendant, and at least three of which were orally argued by the
 attorney.
 (b) Two Appellate Counsel. To be eligible to be appointed as one of two appellate
 counsel on direct appeal in a capital case:
 (1) one attorney must demonstrate that he or she has the qualifications set forth
 in (a) above.
 (2) the second attorney must demonstrate that he or she:
 (i) has at least three years of criminal litigation or postconviction
 experience;
 (ii) is familiar with the practice and procedure of the trial and appellate
 courts of New York, including the New York Court of Appeals; and
 (iii) has had primary responsibility for the appeal, in any state or federal
 court, of at least three felony convictions, at least one of which was on
 behalf of the defendant.
 (c) Trial Counsel. If otherwise qualified under these standards, and with the consent
 of the client, a defendant's capital trial counsel may seek to be appointed capital
 appellate counsel on the same defendant's appeal.
 (d) Waiver. If an attorney cannot meet one or more of the requirements set forth
 above, the Screening Panel, after consideration of the recommendation of the
 Capital Defender Office, may waive such requirement by demonstration by the
 attorney that he or she, by reason of extensive civil litigation and/or appellate
 experience or other exceptional qualifications, is capable of providing effective
 representation as appellate counsel in a capital case.
 2. Applications to the Capital Defender Office

 (b) Required Submissions. In support of an application, an attorney shall submit to
 the Capital Defender Office:
 (1) at least two briefs, written exclusively or primarily by the applicant, the
 opposing briefs, and the decisions;
 (2) descriptions of any capital or other criminal appellate advocacy or other
 criminal practice program attended;
 (3) the names, addresses and phone numbers of two prosecutors and two
 defense attorneys, current or former, including at least one appellate
 adversary, familiar with the applicant's work as an effective advocate;
 (4) the applicant may submit the name, address and phone number of one
 appellate judge, if the judge is familiar with the applicant's work as an
 effective advocate; and
 (5) any other material that may be relevant to fully evaluate the applicant's
 appellate qualifications and experience.
 Virginia Public Defender Commission, Standards for the Qualifications of
 Appointed Counsel in Capital Cases
 B. APPELLATE COUNSEL Attorneys qualifying as court appointed "lead counsel"
 under Section A(1) automatically qualify as "lead" appellate counsel. Other appointed
 appellate counsel must meet the following requirements:
 1. Be an active member in good standing of the Virginia State Bar or admitted to
 practice pro hac vice.
 2. Have briefed and argued the merits in:
 a. At least three criminal cases in appellate court; or
 b. The appeal of a case in which the death penalty was imposed.
 3. Have had, within the past two years, some specialized training in capital case
 litigation and be familiar with the rules and procedures of appellate practice.
  4. Postconviction Attorney Qualifications/Experience
 Commentary. As with the trial and appeal attorney standards, the ABA and NLADA
 standards serve as the model for state standards. Note that of the nine state
 standards for trial attorney qualifications, two (Georgia and Indiana) have no
 standard for postconviction counsel. The sole set of state or local standards that
 include capital case representation is the Philadelphia General Court Regulation 89-
 3, Rule 406, "Standards for Appointment of Counsel," and Rule 406-4,
 "Postconviction Petitions by Prisoners Under Sentence of Death" (1996). The
 Arizona Supreme Court Rules of Criminal Procedure, Rule 6.8, "Standards for
 Appointment of Counsel in Capital Cases," sets identical requirements for appellate
 and postconviction counsel.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 5.1 Attorney Eligibility
 III. POSTCONVICTION
 A. Assignments to represent indigents in postconviction proceedings in capital cases
 should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. are experienced and active trial practitioners with at least three years litigation
 experience in the field of criminal defense; and
 iii. have prior experience as counsel in no fewer than five jury or bench trials of
 serious and complex cases which were tried to completion, as well as prior
 experience as postconviction counsel in at least three cases in state or federal
 court. In addition, of the five jury or bench trials which were tried to completion,
 the attorney should have been counsel in at least three cases in which the charge
 was murder or aggravated murder; or alternatively, of the five trials, at least one
 was a murder or aggravated murder trial and an additional three were felony jury
 trials; and
 iv. are familiar with the practice and procedure of the appropriate courts of the
 jurisdiction; and
 v. have attended and successfully completed, within one year prior to their
 appointment, a training or educational program on criminal advocacy which
 focused on the postconviction phase of a criminal case, or alternatively, a
 program which focused on the trial of cases in which the death penalty is sought;
 and
 vi. have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 In addition to the experience level detailed above, it is desirable that at least one of the
 two postconviction counsel also possesses appellate experience at the level described in
 II.B. above (relating to appellate co-counsel).
 B. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial, appellate and/or postconviction
 experience or extensive civil litigation and/or appellate experience, if it is clearly
 demonstrated to the appointing authority that competent representation will be
 provided to the capitally charged indigent defendant. Lawyers appointed under this
 paragraph shall meet one or more of the following qualifications:
 i. Experience in trial, appeal and/or postconviction representation in death penalty
 cases which does not meet the levels detailed in paragraph A above;
 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 iii. The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of experienced
 death penalty attorneys (see Guideline 3.1) to ensure that they will provide competent
 representation.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 1. Qualifications for Appointments

 d. Special Considerations in the Appointment of Counsel in Postconviction Proceedings.
 In appointing postconviction counsel in a case where the defendant is sentenced to
 death, courts should consider the attorney's experience in federal postconviction
 proceedings and in capital postconviction proceedings, as well as the general
 qualifications set forth in paragraph 1(a).
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 5.1 Attorney Eligibility
 III. POSTCONVICTION
 A. Assignments to represent indigents in postconviction proceedings in capital cases
 should be distributed to attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 ii. are experienced and active trial practitioners with at least three years litigation
 experience in the field of criminal defense; and
 iii. have prior experience as counsel in no fewer than five jury or bench trials of
 serious and complex cases which were tried to completion, as well as prior
 experience as postconviction counsel in at least three cases in state or federal
 court. In addition, of the five jury or bench trials which were tried to completion,
 the attorney should have been counsel in at least three cases in which the charge
 was murder or aggravated murder; or alternatively, of the five trials, at least one
 was a murder or aggravated murder trial and an additional three were felony jury
 trials; and
 iv. are familiar with the practice and procedure of the appropriate courts of the
 jurisdiction; and
 v. have attended and successfully completed, within one year prior to their
 appointment, a training or educational program on criminal advocacy which
 focused on the postconviction phase of a criminal case, or alternatively, a
 program which focused on the trial of cases in which the death penalty is sought;
 and
 vi. have demonstrated the necessary proficiency and commitment which exemplify
 the quality of representation appropriate to capital cases.
 In addition to the experience level detailed above, it is desirable that at least one of the
 two postconviction counsel also possesses appellate experience at the level described
 in II.B. above (relating to appellate co-counsel).
 B. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial, appellate and/or postconviction
 experience or extensive civil litigation and/or appellate experience, if it is clearly
 demonstrated to the appointing authority that competent representation will be
 provided to the capitally charged indigent defendant. Lawyers appointed under this
 paragraph shall meet one or more of the following qualifications:
 i. Experience in trial, appeal and/or postconviction representation in death penalty
 cases which does not meet the levels detailed in paragraph A above;
 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes;
 iii. The availability of ongoing consultation support from experienced death penalty
 counsel.
 Attorneys appointed under this paragraph should be prescreened by a panel of
 experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide
 competent representation.
 Kansas Board of Indigents' Defense Services, Permanent Administrative
 Regulations
 Rule 105-3-2 Eligibility to Serve (a)

 (6) Each Attorney assigned or appointed to represent an indigent person who has
 been convicted of capital murder and who is under a sentence of death in
 postconviction proceedings shall be prequalified by the board. Each attorney shall
 be screened by the board to determine the attorney's qualifications to serve as
 defense counsel to an indigent person who has been convicted of capital murder
 and who is under a sentence of death in the direct review of the judgment,
 pursuant to these regulations and "Guideline 5.1(III), Attorney Eligibility," as
 published in the 1989 version of the American Bar Association (ABA)
 "Guidelines for the Appointment and Performance of Counsel in Death Penalty
 Cases." Each attorney who is eligible to serve on the capital appointments
 postconviction panel shall be certified by the board.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard III. Operating Policies and Procedures

 C. Counsel Eligibility Standards
 6. POSTCONVICTION
 6.1 Assignments to represent indigents in postconviction proceedings in capital cases for
 lead and co-counsel assignments should be distributed to attorneys who:
 a. are members of the bar admitted to practice in the jurisdiction or admitted to
 practice pro hac vice; and
 b. are experienced and active trial practitioners with at least five years litigation
 experience in the field of criminal defense, and five years experience in appellate
 advocacy; and
 c. have prior experience as counsel in no fewer than five jury or bench trials of
 serious and complex criminal cases of violence which were tried to completion, as
 well as prior experience as appellate counsel in at least five cases before the
 Nebraska Supreme Court where the conviction involved a period of incarceration
 in excess of one year for a serious violent felony and the conviction resulted from
 a jury trial, and have been counsel in at least two habeas corpus proceedings in
 federal court. In addition, of the five jury or bench trials which were tried to
 completion, the attorney should have been counsel or co-counsel in at least two
 cases in which the charge was first degree murder; or alternatively, of the five
 trials, at least one was first degree murder and the additional four were serious
 violent felonies; and
 d. are familiar with the practice and procedure of the appropriate courts of the
 jurisdiction; and
 e. demonstrate proficiency and commitment exemplifying quality appropriate to
 serious criminal cases. This will be judged by a history of participation in criminal
 continuing legal education programs, membership and activity in professional
 associations supporting criminal defense practitioners, and reputation among
 criminal law practitioners.
 In addition to the experience level detailed above, it is desirable that at least one of the
 two postconviction counsel also possesses appellate experience at the level described
 in the standards above relating to appellate co-counsel.
 6.2 Alternate Procedures: Assignments to represent indigents in postconviction
 proceedings in capital cases for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial, appellate and/or postconviction
 experience or extensive civil litigation and/or appellate experience, if it is clearly
 demonstrated to the appointing authority that competent representation will be
 provided to the capitally charged indigent defendant. Lawyers appointed under this
 paragraph shall meet one or more of the following qualifications:
 a. five years prior experience in trial, appeal and/or postconviction representation in
 death penalty cases which does not meet the levels detailed in paragraph 1 above;
 b. five years experience and specialized training in the defense of persons accused of
 capital crimes;
 c. the availability of ongoing consultation support from experienced death penalty
 counsel for at least five years.
 New York Court of Appeals, Standards for Appellate Counsel in Capital
 Cases
 Standards for State Postconviction Counsel in Capital Cases
 1. State Postconviction Qualifications and Experience
 (a) State Postconviction Counsel. To be eligible to be appointed as lead counsel on
 an initial motion pursuant to section 440.10 or 440.20 of the Criminal Procedure
 Law and any appeal therefrom in a capital case, an attorney must demonstrate
 that he or she:
 (1) has at least six years criminal trial, criminal appellate or state or federal
 postconviction experience, or has at least four years of concentrated criminal
 or civil litigation experience;
 (2) is familiar with:
 (i) the practice and procedure of the trial and appellate courts of New
 York, including the New York Court of Appeals; and
 (ii) the practice and procedure of the federal courts with regard to federal
 habeas corpus petitions;
 (3) has conducted twelve trials before judges, arbitration panels or juries to
 verdict, decision, or hung jury, in serious and complex civil or criminal cases;
 (4) has had primary responsibility for the appeal of at least five felony convictions
 in any state or federal court, at least three of which were on behalf of the
 defendant, and at least three of which were orally argued by the attorney;
 (5) has substantial familiarity with, and extensive experience in the use of, expert
 witnesses and scientific and medical evidence including, but not limited to,
 mental health and pathology evidence; and
 (6) meets two of the following criteria:
 (i) has tried five homicides to verdict or hung jury with at least three as
 defense counsel;
 (ii) has, at the trial level, represented to disposition defendants in eight
 homicide cases;
 (iii) has represented capital defendants in three state or federal
 postconviction proceedings;
 (iv) has brought five motions, pursuant to section 440.10 or 440.20 of the
 Criminal Procedure Law, where hearings were held and witnesses
 examined.
 (b) Waiver. If an attorney cannot meet one or more of the requirements set forth
 above, the Screening Panel, after consideration of the recommendation of the
 Capital Defender Office, may waive such requirement upon demonstration by the
 attorney that he or she, by reason of extensive criminal or civil litigation, 440
 motion practice, appellate and/or postconviction experience or other exceptional
 qualifications, is capable of providing effective representation as postconviction
 counsel in a capital case.
 2. Applications to Capital Defender Office
 (a) Applications. In support of an application, an attorney shall submit to the
 Capital Defender Office a form prescribed by the Capital Defender Office and
 approved by the Administrative Board of the Courts. It shall require the attorney
 to demonstrate that he or she has fully satisfied the requirements set forth above.
 The attorney shall also identify any requirement that he or she requests be waived,
 and shall set forth in detail his or her criminal or civil litigation, 440 motion
 practice, appellate and/or postconviction experience or other exceptional
 qualifications that justify waiver.
 (b) Required Submissions. In support of an application, an attorney shall submit to
 Capital Defender Office:
 (1) a description of a trial or postconviction strategy in a case handled by the
 attorney and reflective of the attorney's thorough advocacy. This strategy
 may have, for instance, aimed to achieve a favorable pre-trial disposition or
 to alter the range of sentencing options;
 (2) at least two memoranda of law prepared by the attorney in connection with
 separate cases;
 (3) at least two appellate briefs written exclusively or primarily by the applicant,
 the opposing briefs, and the decisions;
 (4) the names, addresses, and phone numbers of two prosecutors and two
 defense attorneys, current or former, including at least one adversary,
 familiar with the applicant's work as an effective advocate;
 (5) the applicant may submit the name, address and phone number of one judge,
 if the judge is familiar with the applicant's work as an effective advocate;
 (6) a description of specialized trial, appellate or postconviction capital defense
 training programs regularly attended; and
 (7) any other material that may be relevant to fully evaluate the applicant's
 qualifications and experience.
 Virginia Public Defender Commission, Standards for the Qualifications of
 Appointed Counsel in Virginia Cases
 Standard C. Habeas Corpus Counsel
 1. Habeas Corpus "Lead Counsel" must satisfy one of the following requirements:
 a. Be qualified as "lead counsel" pursuant to Section A(1) and possess familiarity
 with Virginia as well as federal habeas corpus practice.
 b. Possess experience as counsel of record in Virginia or federal postconviction
 proceedings involving attacks on the validity of one or more felony convictions as
 well as a working knowledge of state and federal habeas corpus practice through
 specialized training in the representation of persons with death sentences.
 2. Habeas Corpus "Co-Counsel" must satisfy one of the following requirements:
 a. Service as lead or co-counsel in at least one capital habeas corpus proceeding in
 Virginia and/or federal courts during the last three (3) years;
 b. Have at least (7) years of civil trial and appellate litigation experience in the
 Courts of Record of the Commonwealth and/or federal courts.
  5. Monitoring of Performance and Removal from Roster
 Commentary. Both the ABA and NLADA standards call for monitoring attorney
 performance for purposes of future appointments and removal. The NLADA
 standards add some additional material to emphasize that monitoring is not to
 interfere with the existing case appointment and implies that case removal be sought
 only where the client has no objections. Of the eight states that follow the ABA and
 NLADA standards in some form for attorney qualifications, only Louisiana provides
 for attorney monitoring. The New York Court of Appeals Standards simply provide
 for the exercise of the removal power as a function of the court. See also, Arkansas
 Public Defender Commission Minimum Standards, Attorney Qualifications
 Certification Criteria, "Removal from Certification Lists for Cause" (1997); Second
 Judicial Circuit of Florida, Conflict Attorney Policies, Policy (IV), "Terms of
 Appointment, (B) Performance Review Committee and (C) Periodic Evaluation, (i)
 Evaluation Forms and (v) Removal from Conflict List"; and Eleventh Judicial Circuit
 of Florida, Circuit Conflict Committee, Policies and Procedures, "Policy:
 Decertification and Other Sanctions" (1982) (not limited to capital cases).
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 7.1 Monitoring; Removal
 A. The appointing authority should monitor the performance of assigned counsel to
 ensure that the client is receiving quality representation. Where there is compelling
 evidence that an attorney has inexcusably ignored basic responsibilities of an effective
 lawyer, resulting in prejudice to the client's case, the attorney should not receive
 additional appointments. Where there is compelling evidence that an unalterable
 systemic defect in a defender office has caused a default in the basic responsibilities of
 an effective lawyer, resulting in prejudice to a client's case, the office should not
 receive additional appointments. The appointing authority shall establish a procedure
 which gives written notice to counsel or a defender office whose removal is being
 sought, and an opportunity for counsel or the defender office to respond in writing.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 7.1 Monitoring; Removal
 (a) The appointing authority should monitor the performance of assigned counsel to
 ensure that the client is receiving quality representation. Where there is compelling
 evidence that an attorney has inexcusably ignored basic responsibilities of an effective
 lawyer, resulting in prejudice to the client's case, the attorney should not receive
 additional appointments. Where there is compelling evidence that an unalterable
 systemic defect in a defender office has caused a default in the basic responsibilities of
 an effective lawyer, resulting in prejudice to a client's case, the office should not
 receive additional appointments. The appointing authority shall establish a procedure
 which gives written notice to counsel or a defender office whose removal is being
 sought, and an opportunity for counsel or the defender office to respond in writing.
 (b) In fulfilling its monitoring function, however, the appointing authority should not
 attempt to interfere with the conduct of particular cases. Representation of an accused
 establishes an inviolable attorney-client relationship. In the context of a particular
 case, removal of counsel from representation should not occur over the objection of
 the client.
 (c) No attorney or defender office should be readmitted to the appointment roster after
 removal under (a) above unless such removal is shown to have been erroneous or it is
 established by clear and convincing evidence that the cause of the failure to meet basic
 responsibilities has been identified and corrected.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part VII. Monitoring; Removal. Attorneys certified within the guidelines of this Chapter
 shall be monitored to ensure eligibility.
 Standard 7-7.1. Status and Training Criteria. An attorney who fails to maintain
 his or her status and educational requirements as defined in Part I of this Chapter shall
 not be considered certified for purposes of appointment in capital cases. An attorney
 may seek recertification once the criteria of Part I are satisfied.
 Standard 7-7.2. Ineffectiveness. Where there is compelling evidence that an
 attorney has inexcusably ignored basic responsibilities of an effective lawyer, resulting
 in prejudice to an indigent client's case, the attorney shall not be considered certified
 for purposes of appointment in capital cases. In this instance, an attorney shall be
 given an opportunity to respond in writing to specific charges of ineffectiveness.
 Standard 7-7.3. Review of Active Representation. Representation of an accused
 establishes an inviolable attorney-client relationship. Thus, an attorney's eligibility to
 represent an indigent client may not be reviewed, except by a court of proper
 jurisdiction, on the basis of conduct involving a case in which the attorney is presently
 actively representing the indigent client.
 Standard 7-7.4. Recertification. An attorney decertified under Standard 7-7.2 shall
 not be recertified unless the decertification is shown to have been erroneous or it is
 established by clear and convincing evidence that the cause of the failure to meet basic
 responsibilities has been identified and corrected.

  New York Court of Appeals, Standards for Appellate Counsel in Capital
 Cases
 6. Retention and Eligibility

 (b) Removal from the Court of Appeals Roster. The Court of Appeals may
 remove from its roster of attorneys any attorney who, in the Court's judgment,
 has not provided competent, thorough representation.
  6. Requirement for Training
 Commentary. The ABA and NLADA standards for attorney qualifications include a
 training requirement. The NLADA version is represented here, as is the ABA's
 additional standard on training.

 The Louisiana standards for training are also reprinted here from the trial attorney
 qualifications along with a standard for maintaining training. Also included here are
 the federal and New York Court of Appeals standards.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 9.1 Training
 Attorneys seeking eligibility to receive appointments pursuant to these Guidelines should
 have completed the training requirements specified in Guideline 5.1. Attorneys seeking to
 remain on the roster of attorneys from which assignments are made should continue, on a
 periodic basis, to attend and successfully complete training or educational programs which
 focus on advocacy in death penalty cases. The legal representation plan for each
 jurisdiction should include sufficient funding to enable adequate and frequent training
 programs to be conducted for counsel in capital cases and counsel who wish to be placed
 on the roster.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 8. Training
 Federal Death Penalty Training Programs. The Administrative Office should continue to
 offer and expand training programs designed specifically for defense counsel in federal
 death penalty cases.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 5.1 Attorney Eligibility
 The appointing authority should distribute assignments in capital cases to attorneys who
 possess the following qualifications:
 I. TRIAL
 A. Lead trial counsel assignments should be distributed to attorneys who:

 (vi) have attended and successfully completed, within one year of their appointment, a
 training or educational program on criminal advocacy which focused on the trial
 of cases in which the death penalty is sought;
 B. Trial co-counsel assignments should be distributed to attorneys who:

 d. have completed within one year of their appointment at least one training or
 educational program on criminal advocacy which focused on the trial of
 cases in which the death penalty is sought
 C. Alternate Procedures: Appointments for lead and co-counsel assignments may also be
 distributed to persons with extensive criminal trial experience or extensive civil
 litigation experience, if it is clearly demonstrated to the appointing authority that
 competent representation will be provided to the capitally charged indigent defendant.
 Lawyers appointed under this paragraph shall meet one or more of the following
 qualifications:

 ii. Specialized postgraduate training in the defense of persons accused of capital
 crimes
 Attorneys appointed under this paragraph should be prescreened by a panel of
 experienced death penalty attorneys (see Standard 3.1) to ensure that they will provide
 competent representation.

 Standard 9.1 Training
 Attorneys seeking eligibility to receive appointments pursuant to these Standards should
 have completed the training requirements specified in Standard 5.1. Attorneys seeking to
 remain on the roster of attorneys from which assignments are made should continue, on a
 periodic basis to attend and successfully complete training or educational programs which
 focus on advocacy in death penalty cases. The legal representation plan for each
 jurisdiction should include sufficient funding to enable adequate and frequent training
 programs to be conducted for counsel in capital cases and counsel who wish to be placed
 on the roster.
 NLADA Defender Training and Development Standards
 Standard 7.1 Death Penalty Defense
 Defender organizations should provide employees responsible for the representation of
 death penalty clients with all training necessary for high quality service to the client at
 every stage of the process: pretrial, trial, penalty phase, appeal and postconviction.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part I. General Principles of Certification Eligibility. The following standards shall be
 applied to attorney certification under any part of this chapter:

 Standard 7-1.3. Initial Training. Within one year of an initial application for
 certification under the standards of this Chapter, the attorney shall complete a
 minimum of 12 hours of Board-approved training primarily involving advocacy in the
 field of capital defense.
 Standard 7-1.4. Continuing Training. To maintain certification, counsel shall,
 every two years from the date of certification, successfully complete a minimum of 12
 hours of Board-approved training primarily involving advocacy in the field of capital
 defense.

 Standard 7-7.1. Status and Training Criteria. An attorney who fails to maintain
 his or her status and educational requirements as defined in Part I of this Chapter shall
 not be considered certified for purposes of appointment in capital cases. An attorney
 may seek recertification once the criteria of Part I are satisfied.
 New York Court of Appeals, Standards for Appellate Counsel in Capital
 Cases
 5. Training
 (a) Certification. An Attorney shall not be eligible to be appointed as
 postconviction counsel in a capital case unless the Capital Defender Office shall
 certify that the attorney satisfactorily has completed a capital postconviction
 course prescribed by the Capital Defender Office and approved by the
 Administrative Board of the Courts.
 (b) Interim Certification. The Screening Panel, or the Court of Appeals, in its
 discretion, may permit an attorney to be eligible for such appointment if the
 attorney meets all of the other requirements for qualification and experience, and
 the Capital Defender Office confirms that such attorney is in active pursuit of such
 training and certification.
 6. Retention and Eligibility
 (a) On-Going Training. To remain eligible for appointment as counsel, an attorney
 must attend and successfully complete capital training sessions as prescribed by
 the Capital Defender Office.

  C. Plan Elements
 The following groups of standards are included in this section:
 1. Requirement for a formal plan
 2. Provision for support services
 3. Related standards
 Compare the standards below to those found in Compendium Volume I,
 "Standards for the Administration of Defense Services," especially American Bar
 Association Defense Services Standard 5-1.2(d).

  1. Requirement for a Formal Plan
 Commentary. The formal plan requirements as set forth by the ABA guidelines and
 the NLADA standards are identical, with only a few language differences. Both are
 included for the sake of completeness.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 3.1 The Legal Representation Plan
 The legal representation plan for each jurisdiction should include measures to formalize
 the process by which attorneys are assigned to represent capital defendants. To
 accomplish this goal, the plan should designate a body (appointing authority) within the
 jurisdiction which will be responsible for performing all duties in connection with the
 appointment of counsel as set forth by these Guidelines. This Guideline envisions two
 equally acceptable approaches for formalizing the process of appointment:
 a. The authority to recruit and select competent attorneys to provide representation in
 capital cases may be centralized in the defender office or assigned counsel program of
 the jurisdiction. The defender office or assigned counsel program should adopt
 standards and procedures for the appointment of counsel in capital cases consistent
 with these Guidelines, and perform all duties in connection with the appointment
 process as set forth in these Guidelines.
 b. In jurisdictions where it is not feasible to centralize the tasks of recruiting and selecting
 competent counsel for capital cases in a defender office or assigned counsel program,
 the legal representation plan should provide for a special appointments committee to
 consist of no fewer than five attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction;
 ii. have practiced law in the field of criminal defense for not less than five years;
 iii. have demonstrated knowledge of the specialized nature of practice involved in
 capital cases;
 iv. are knowledgeable about criminal defense practitioners in the jurisdiction; and
 v. are dedicated to quality legal representation in capital cases.
 The committee should adopt standards and procedures for the appointment of counsel in
 capital cases, consistent with these Guidelines, and perform all duties in connection with
 the appointment process.

  NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 3.1 The Legal Representation Plan
 The legal representation plan for each jurisdiction should include measures to formalize
 the process by which attorneys are assigned to represent capital defendants. To
 accomplish this goal, the plan should designate a body (appointing authority) within the
 jurisdiction which will be responsible for performing all duties in connection with the
 appointment of counsel as set forth by these Standards. This Standard envisions two
 equally acceptable approaches for formalizing the process of appointment:
 (a) The authority to recruit and select competent attorneys to provide representation in
 capital cases may be centralized in the defender office or assigned counsel program of
 the jurisdiction. The defender office or assigned counsel program should adopt
 Standards and procedures for the appointment of counsel in capital cases consistent
 with these Standards, and perform all duties in connection with the appointment
 process as set forth in these Standards.
 (b) In jurisdictions where it is not feasible to centralize the tasks of recruiting and selecting
 competent counsel for capital cases in a defender office or assigned counsel program,
 the legal representation plan should provide for a special appointments committee to
 consist of no fewer than five attorneys who:
 i. are members of the bar admitted to practice in the jurisdiction;
 ii. have practiced law in the field of criminal defense for not less than five years;
 iii. have demonstrated knowledge of the specialized nature of practice involved in
 capital cases;
 iv. are knowledgeable about criminal defense practitioners in the jurisdiction; and
 v. are dedicated to quality legal representation in capital cases.
 The committee should adopt Standards and procedures for the appointment of counsel in
 capital cases, consistent with these Standards, and perform all duties in connection with
 the appointment process.
  2. Provision for Support Services
 Commentary. The ABA and NLADA standards for support services are virtually
 identical. See their corresponding standards in Compendium Volume I, "Standards
 for the Administration of Defense Services." The Louisiana standards follow the
 spirit, if not the letter, of these two national standards. The federal standards will be
 relevant to states with a state public defender system. See also, Indiana Rules of
 Criminal Procedure, Criminal Rule 24: Capital Cases, Section (c)(2) and (c)(3)
 "Incidental Expenses."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 8.1 Supporting Services
 The legal representation plan for each jurisdiction should provide counsel appointed
 pursuant to these Guidelines with investigative, expert, and other services necessary to
 prepare and present an adequate defense. These should include not only those services
 and facilities needed for an effective defense at trial, but also those that are required for
 effective defense representation at every stage of the proceedings, including the sentencing
 phase.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 7. Experts
 a. Salaried Positions for Penalty Phase Investigators. The federal defender program
 should consider establishing salaried positions within FDOs for persons trained to
 gather and analyze information relevant to the penalty phase of a capital case. FDOs
 should explore the possibility that, in addition to providing services in death penalty
 cases to which their FDO is appointed, it might be feasible for these investigators to
 render assistance to panel attorneys and to other FDOs.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 8.1 Supporting Services
 The legal representation plan for each jurisdiction should provide counsel appointed
 pursuant to these Standards with investigative, expert, and other services necessary to
 prepare and present an adequate defense. These should include not only those services
 and facilities needed for an effective defense at trial, but also those that are required for
 effective defense representation at every stage of the proceedings, including the sentencing
 phase.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part X. Support Services.
 Standard 7-10.1. Securing Support Services. Counsel appointed to represent a
 capital defendant should secure all proper and necessary support services, including,
 but not limited to, investigative, expert, mitigation, and any other support services
 necessary to prepare and present an adequate defense. An attorney should use all
 available support services and facilities needed for an effective performance at every
 stage of the proceedings, including pretrial, trial and sentencing. Counsel should seek
 financial and technical assistance from all possible sources, including the district
 indigent defender board and the Capital Program, Expert Witness/Testing Fund, and
 District Assistance Fund of the Louisiana Indigent Defender Board.

  3. Related Standards
 Commentary. In Georgia, the contract attorney program may not handle death
 penalty cases as part of the contract. Compare ABA Defense Services Standards S
 5.3.3(vi) providing that contracts for defense services should "include special
 provisions for complex matters such as capital cases."
 Georgia Indigent Defense Council, Guidelines for the Operation of Local
 Indigent Defense Programs
 Guideline 2.7 Contract Attorney Program
 The inclusion of capital felonies where the death penalty is sought as a portion of the
 contract is prohibited.
 
 D. Financial
 The standards in this section address the following topics:
 1. Client eligibility
 2. Attorney compensation rate
 Compare the standards below to those found in Compendium Volume I,
 "Standards for the Administration of Defense Services."

  1. Client Eligibility
 Commentary. In addition to the Nebraska standards herein, see also those
 standards found under in Compendium Volume I, "Standards for the Administration
 of Defense Services."
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard II. Definitions

 D. INDIGENT
 An indigent party is defined as:
 (a) A party who is:
 (i) Receiving an annual gross income of 125% or less of the current federally
 established poverty level; or
 (ii) Residing in a public mental health facility or is the subject of a proceeding in
 which admission or commitment to such a facility is sought, provided that
 where the County Board of Mental Health or the judge has reason to believe
 the party is not indigent, a determination of indigency shall be made in
 accordance with these rules; or
 (iii) Serving a sentence in a correctional institution and has no available funds; or
 (iv) Held in custody in jail and has no available funds; or
 (b) A party who is unable to retain legal counsel without prejudicing the party's
 ability to provide economic necessities for the party or the party's family.
 E. INCOME
 Income shall mean salary, wages, interest, dividends, rental income, and other earnings
 and cash payments such as amounts received from pensions, annuities, social security, and
 public assistance programs.

 Standard VIII. Nebraska Commission on Public Advocacy Standards to Determine
 Indigency
 These rules shall apply to any party who has a right to be represented by an attorney of the
 Commission on Public Advocacy. The eligibility for appointment of an attorney at public
 expense shall be determined in conformance with these rules.
 A. DEFINITION OF TERMS
 The following definitions shall apply to these rules:
 1. Income shall mean salary, wages, interest, dividends, rental income, and other
 earnings and cash payments such as amounts received from pensions, annuities,
 social security, and public assistance programs.
 2. Indigent for purposes of this rule shall mean:
 (a) A party who is:
 (i) Receiving an annual gross income of 125% or less of the current
 federally established poverty level; or
 (ii) Residing in a public mental health facility or is the subject of a
 proceeding in which admission or commitment to such a facility is
 sought, provided that where the County Board of Mental Health or the
 judge has reason to believe the party is not indigent, a determination of
 indigency shall be made in accordance with these rules; or
 (iii) Serving a sentence in a correctional institution and has no available
 funds; or
 (iv) Held in custody in jail and has no available funds; or
 (b) A party who is unable to retain legal counsel without prejudicing the party's
 ability to provide economic necessities for the party or the party's family.
 B. AFFIDAVIT OF INDIGENCY
 A party who desires to proceed as an indigent represented by an attorney appointed by the
 court shall complete an affidavit under oath concerning his or her financial resources
 (FORM 1). The party shall be advised of the penalties for perjury. The defendant has an
 ongoing duty to update the affidavit as his or her financial status changes.
 C. DETERMINATION OF INDIGENCY
 If the court finds that the party has not effectively waived his or her right to counsel, and
 the party has not arranged to obtain counsel, the court shall receive the affidavit of
 indigency and may question the party under oath. After reviewing the information
 contained in the affidavit and, if applicable, the party's testimony, the court shall determine
 whether the party is indigent under these rules. The court shall record its finding on the
 affidavit of indigency (FORM 1) and file it with the papers in the case. The county or
 prosecuting attorney shall have no standing in the determination of indigency or the
 appointment of counsel.
 D. ASSIGNMENT OF COUNSEL/NOTICE OF ASSIGNMENT
 If the court finds that a party is indigent, the court shall appoint an attorney or the
 Commission on Public Advocacy to provide representation for the party. The Clerk of the
 Court shall promptly complete and transmit a notice of assignment of counsel (FORM 2)
 and shall file a copy in the case file.
 E. REVIEW OF INDIGENCY DETERMINATION
 1. A party's indigency status may be reviewed in a formal hearing at any stage of a
 court proceeding if additional information regarding financial circumstances
 becomes available to the court.
 2. A party has a right to reconsideration in a formal hearing of the findings and
 conclusions regarding the party's indigency.
  2. Attorney Compensation Rate
 Commentary. The ABA and NLADA standards implicitly recognize the need to
 compensate attorneys in capital cases at rates higher than those paid other
 assigned counsel. As the federal recommendations point out, this is necessary to
 attract the experienced attorneys required in such cases. The two state fee
 schedules do not, however, necessarily follow the national recommendations. See
 also, Indiana Rules of Criminal Procedure, Rule 24: Capital Cases, Sections (c)(1)
 and (k)(1), "Hours and Hourly Rate" ($70 per hour). Contrast the Gwinnett Judicial
 Circuit, Internal Operating Procedure 98-5, "Fee Schedule," Guideline 11.2, which
 provides for a $100 compensation rate for lead counsel and $75 for second chair
 counsel, with Cobb County Indigent Defense Program Guidelines, Article V, Section
 2(a), Rate of Payment in Death Penalty Cases, setting the reimbursement rate as
 $50/$40 for counsel with no maximum.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 10.1 Compensation
 A. Capital counsel should be compensated for actual time and service performed. The
 objective should be to provide a reasonable rate of hourly compensation which is
 commensurate with the provision of effective assistance of counsel and which reflects
 the extraordinary responsibilities inherent in death penalty litigation.
 B. Capital counsel should also be fully reimbursed for reasonable incidental expenses.
 C. Periodic billing and payment during the course of counsel's representation should be
 provided for in the representation plan.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 1. Qualifications for Appointment

 e. Hourly Rate of Compensation for Counsel. The rate of compensation for counsel in a
 capital case should be maintained at a level sufficient to assure the appointment of
 attorneys who are appropriately qualified to undertake such representation.

  NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 10.1 Compensation
 a. Capital counsel should be compensated for actual time and service performed. The
 objective should be to provide a reasonable rate of hourly compensation which is
 commensurate with the provision of effective assistance of counsel and which reflects
 the extraordinary responsibilities inherent in death penalty litigation.
 b. Capital counsel should also be fully reimbursed for reasonable incidental expenses.
 c. Periodic billing and payment during the course of counsel's representation should be
 provided for in the representation plan.
 Georgia Indigent Defense Council, Guidelines for the Operation of Local
 Indigent Defense Programs
 2.6 Fees Paid to Lawyers Under a Panel Program
 Capital felonies in which the death penalty is sought should be compensated based on
 hourly rates and the time spent as documented in records submitted by the attorneys.
 Compensation for a capital felony case in which the death penalty is sought shall be at
 least at the same hourly rate as other cases, but each case should be examined by the court
 and the fee total should be based on a complete examination of the individual case.
 Special attention shall be given to continuing counsel obligations in death penalty cases
 when conviction and imposition of the death penalty occur.
 Ohio Public Defender, Standards and Guidelines for Appointed Counsel
 Reimbursement
 Section II. State Maximum Fee Schedule for Appointed Counsel Reimbursement

 B. Trial Level Proceedings
 1. Reimbursement for representation in trial level cases will be made based on the
 maximum rate of $40.00 per hour for out-of-court services and $50.000 per hour
 for in-court services.
 2. The prescribed maximum fees permitted in trial level proceedings are:

 Offense Proceeding
 Fee Maximum

 Aggravated Murder (w/specs) as per O.R.C.
 2929.04(A) and 2941.14(B)
 $40,000 (Ohio Supreme Court Rule 65 of the
 Rules of Superintendence of the Common
 Pleas Courts requires the appointment of two
 (2) attorneys in capital offense cases. This fee
 is the maximum that will be paid on the
 combined bills of both attorneys appointed to
 the case.)

 Aggravated Murder (w/o specs)
 $6,000/1 attorney
 $8,000/2 attorneys

 Murder
 $3,000

 D. Appellate Level Proceedings

 2. Reimbursement for representation of appellate level proceedings involving a death
 sentence will be made based on the maximum rate of $45.00 per hour for both out-
 of-court and in-court services.
 3. The prescribed maximum fees permitted in appellate level proceedings are listed
 below. The rates apply to each level of appeal.
 Offense/Proceeding Fee Maximum
 Aggravated Murder (death sentence imposed) $10,000
 Aggravated Murder (sentence other than death) 4,000
 Murder 1,500
 E. Postconviction and Habeas Corpus Proceedings

3.Reimbursement for postconviction and state habeas corpus proceedings involving a
death sentence shall be made based on the maximum rate of $45.00 per hour for both out-
of-court and in-court services to a maximum of $10,000 for each stage of the
 postconviction or habeas corpus proceedings.
  E. Workload
 Limitations on the number of cases an attorney should accept are a common standard for
 trial attorneys. (See Compendium Volume I, "Standards for the Administration of
 Defense Services.") However, special problems relating to workload limitations and
 distribution exist in capital cases.
 The standards in this section address the following topics:
 1. Requirement that workload not be excessive
 2. Specification of the number of attorneys per case

  1. Requirement That Workload Not Be Excessive
 Commentary. The ABA and Louisiana standards set forth general principles that
 speak to how excessive caseloads can interfere with proper representation in capital
 cases. In contrast, the Nebraska standards set forth statistical expectations for the
 number of death penalty cases an attorney can be expected to handle. See also,
 Indiana Rules of Criminal Procedure, Rule 24: Capital Cases, Section (B)(3), (J)(2).
 Compare ABA Defense Services Standard 5-53(a) providing that "special
 consideration should be given to the workload created by representation in capital
 cases."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 6.1 Workload
 Attorneys accepting appointments pursuant to these Guidelines should provide each client
 with quality representation in accordance with constitutional and professional standards.
 Capital counsel should not accept workloads which, by reason of their excessive size,
 interfere with the rendering of quality representation or lead to the breach of professional
 obligations.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part IX. Workload. The following standards shall serve as guides to attorneys eligible for
 appointment in capital cases.
 Standard 7-9.1. Professional Obligation. Attorneys accepting appointments
 pursuant to these standards should provide each indigent client with quality
 representation in accordance with constitutional and professional standards. Capital
 counsel should not accept workloads which, by reason of their excessive size, interfere
 with the rendering of quality representation or lead to the breach of professional
 obligations.
 Standard 7-9.2. Determination of Workload. To determine maximum workload,
 an attorney should consider, among other factors, quality of representation, speed of
 turnover of cases, percentage of cases tried, extent of support services available, court
 procedures, and involvement in complex litigation.

  Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard III. Operating Policies and Procedures
 A. Caseload Standards for the Commission

 2. Recommended Caseload Standards
 The Commission recognizes that the cases it will accept will not likely fall into the
 general caseload statistical categories which compare the percentage of cases in
 which a plea is entered to the percentage of cases which go to trial. [T]he
 cases themselves will be more complex since the Commission will be handling
 serious felony, with sizeable records; this too will reduce the normal caseload.
 These assumptions also hold true for the appellate attorneys. The more complex
 the cases and the larger the record, fewer appeals can be handled by the appellate
 attorneys. Therefore, the following yearly caseload standards, per attorney, are
 recommended, with the understanding that the Commission will be monitoring
 these standards very carefully over the next year, since there is no history to rely
 upon, making them subject to change:

 b. Litigation capital attorney 2 to 3 first degree murder death penalty cases,
 and an additional 2 to 3 first degree murder, non-death penalty cases (4 first
 degree non-death penalty cases equal 1 first degree death penalty case).
 Under no circumstance more than 3 death penalty cases and 1 non-death
 penalty case at any given time.

 d. Appellate capital attorney a combination of 2 to 3 first degree murder death
 penalty appeals, and 2 to 3 first degree non-death penalty appeals (4 first
 degree non-death penalty appeals equal 1 first degree death penalty appeal).
 Under no circumstance more than 3 death penalty appeals and 1 non-death
 penalty appeal at any given time.

 D. Workload
 Attorneys accepting appointments pursuant to these Guidelines should provide each
 client with quality representation in accordance with constitutional and professional
 standards. Capital counsel should not accept workloads which, by reason of their
 excessive size, interfere with the rendering of quality representation or lead to the
 breach of professional obligations.

  2. Specification of the Number of Attorneys per Case
 Commentary. There is relatively strong agreement among those groups adopting
 death penalty standards that two attorneys should be appointed in these cases. See
 also, Kansas Regulation 105-3-12 (supra) authorizing appointment of co-counsel.
 The Georgia guidelines do not speak directly to the point but generally refer to the
 ABA standards for direction (Georgia Guideline 2.4, supra). The Washington state
 standards refer to "lead counsel," implying two counsel to represent defendant,
 Standard 14, supra. The Indiana standards, the New York Court of Appeals
 standards, and the New York City requirements do not refer to the number of
 counsel to be appointed. See also, Utah Rules of Criminal Procedure, Rule 8(b);
 Arkansas Public Defender Commission, Minimum Standards, Attorney Qualification
 Certification Criteria, "Number of Attorneys per Case"; Indiana Rules of Criminal
 Procedures, Rule 24(B); and North Carolina General Statutes 7A-450(b)(1) for an
 endorsement of the two-attorney standard.

 In addition, the Alameda County Bar Association Rules and Regulations of the Court
 Appointed Attorneys' Program and the Eleventh Judicial Circuit of Florida Circuit
 Conflict Committee Policies and Procedures seem to implicitly accept a two-attorney
 appointment by providing separate eligibility criteria for lead and assistant counsel.
 The Philadelphia General Court Regulation 89-3 authorizes lead counsel to seek
 appointment of a second attorney from the court when the death penalty is sought,
 but does not require such appointment.
 ABA Standards for Criminal Justice: Providing Defense Services
 Standard 5-6.1 Initial Provision of Counsel
 In capital cases, two qualified trial attorneys should be assigned to represent the
 defendant. The authorities should promptly notify the defender, the contractor for
 services, or the official responsible for assigning counsel whenever the person in custody
 requests counsel or is without counsel.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 2.1 Number of Attorneys Per Case
 In cases where the death penalty is sought, two qualified trial attorneys should be assigned
 to represent the defendant. In cases where the death penalty has been imposed, two
 qualified appellate attorneys should be assigned to represent the defendant. In cases
 where appellate proceedings have been completed or are not available and the death
 penalty has been imposed, two qualified postconviction attorneys should be assigned to
 represent the defendant.
 Federal Judicial Conference Committee on Defender Services, Federal
 Death Penalty Cases: Recommendations Concerning the Cost and Quality
 of Defense Representation
 1. Qualifications for Appointment

 b. Qualifications of Counsel. As required by statute, at the outset of every capital case,
 courts should appoint two counsel, at least one of whom is experienced in and
 knowledgeable about the defense of death penalty cases. Ordinarily, "learned counsel"
 should have distinguished prior experience in the trial, appeal, or postconviction
 review of federal death penalty cases, or distinguished prior experience in state death
 penalty trials, appeals, or postconviction review that, in combination with co-counsel,
 will assure high quality representation.

 3. Appointment of More Than Two Lawyers
 Number of Counsel. Courts should not appoint more than two lawyers to provide
 representation to a defendant in a federal death penalty case unless exceptional
 circumstances and good cause are shown. Appointed counsel may, however, with prior
 court authorization, use the services of attorneys who work in association with them,
 provided that the employment of such additional counsel (at a reduced hourly rate)
 diminishes the total cost of representation or is required to meet time limits.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 2.1 Number of Attorneys Per Case
 In cases where the death penalty is sought, two qualified trial attorneys should be assigned
 to represent the defendant. In cases where the death penalty has been imposed, two
 qualified appellate attorneys should be assigned to represent the defendant. In cases
 where appellate proceedings have been completed or are not available and the death
 penalty has been imposed, two qualified postconviction attorneys should be assigned to
 represent the defendant.
 Louisiana Indigent Defender Board, Standards on Indigent Defense
 Part VIII. Number of Attorneys for Capital Defense. The following number of attorneys
 should be appointed in cases involving an indigent defendant charged with a capital crime or
 where an appeal has been lodged in a case where the death penalty has been imposed.
 Standard 7-8.1. Trial Counsel. In cases where a defendant is charged with a crime
 for which the death penalty may be imposed, not less than two certified trial attorneys,
 one of which must be certified trial lead counsel in accordance with this Chapter, shall
 be assigned to represent the defendant.
 Standard 7-8.2. Appellate Counsel. In cases where the death penalty has been
 imposed on an indigent defendant and an appeal has been taken, an attorney, certified
 as appellate lead counsel in accordance with this Chapter, shall be assigned to
 represent the defendant. It is recommended, but not mandated, that a certified
 appellate associate counsel be assigned to assist in the appeal, although the degree of
 participation of the associate counsel may be less than lead counsel.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard III. Operations Policies and Procedures

 B. Number of Attorneys per Case
 In cases where the death penalty is sought, two qualified trial attorneys should be assigned
 to represent the defendant. In cases where the death penalty has been imposed, two
 qualified appellate attorneys should be assigned to represent the defendant. In cases
 where appellate proceedings have been completed or are not available and the death
 penalty has been imposed, two qualified postconviction attorneys should be assigned to
 represent the defendant.
 Virginia Public Defender Commission, Standards for the Qualifications of
 Appointed Counsel in Capital Cases
 Preface
 While Virginia Code does not require more than one attorney, the appointment of two
 attorneys is strongly urged for trial, appellate and habeas proceedings.
  F. Attorney Performance: Pretrial
 The three sets of standards reproduced in this section the ABA guidelines, the NLADA
 standards, and the Nebraska standards are all virtually identical in language and content.
 This section contains standards on the following topics:
 1. Requirement for performance standards
 2. Need to prepare as if death penalty to be sought
 3. Theory of case
 4. Independent investigation
 5. Close contact with client
 6. Pretrial motions
 7. Plea negotiations
 8. Need to inform client of plea options
 9. Explanation of plea contents and implications
 Compare the standards below (except for "Need to Prepare As If Death Penalty to
 Be Sought") to those presented in Compendium Volume II, "Standards for
 Attorney Performance."

  1. Requirement for Performance Standards
 Commentary. Both the ABA and NLADA standards set forth a requirement for
 establishing performance standards. Presumably, these standards are to be used in
 conjunction with the Monitoring and Removal Standards supra. See also relevant
 standards in Compendium Volume II, "Standards for Attorney Performance."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.1 Establishment of Performance Standards
 A. The appointing authority should establish standards of performance for counsel
 appointed in death penalty cases.
 B. The standards of performance should include, but should not be limited to, the specific
 standards set out in Guidelines 11.3 through 11.9.
 C. The appointing authority should refer to the standards of performance when assessing
 the qualification of attorneys seeking to be placed on the roster from which
 appointments in death penalty cases are to be made (Guideline 4.1) and in monitoring
 the performance of attorneys to determine their continuing eligibility to remain on the
 roster (Guideline 7.1).
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.1 Establishment of Performance Standards
 a. The appointing authority should establish Standards of performance for counsel
 appointed in death penalty cases.
 b. The Standards of performance should include, but should not be limited to the specific
 Standards set out in Standards 11.3 through 11.9.
 c. The appointing authority should refer to the Standards of performance when assessing
 the qualification of attorneys seeking to be placed on the roster from which
 appointments in death penalty cases are to be made (Standard 4.1) and in monitoring
 the performance of attorneys to determine their continuing eligibility to remain on the
 roster (Standard 7.1).
  2. Need to Prepare As If Death Penalty to Be Sought
 Commentary. A prosecutor's decision to proceed in seeking the death penalty may
 be delayed to garner information about the appropriateness of the death penalty.
 Vigorous counsel can at this point affect the prosecutor's decision by presenting
 mitigating evidence to show the inappropriateness of the death penalty. Even when
 this is not possible, acting on the assumption that the death penalty will be pursued
 is necessary to have sufficient time to gather all relevant evidence. The three
 standards here agree that prompt action is needed in potential capital cases.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.3 Determining That Death Penalty Is Being Sought
 Counsel appointed in any case in which the death penalty is a possible punishment should,
 even if the prosecutor has not indicated that the death penalty will be sought, begin
 preparation for the case as one in which the death penalty will be sought while employing
 strategies to have the case designated by the prosecution as a non-capital one.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.3. Determining That the Death Penalty Is Being Sought
 Counsel appointed in any case in which the death penalty is a possible punishment should,
 even if the prosecutor has not indicated that the death penalty will be sought, begin
 preparation for the case as one in which the death penalty will be sought while employing
 strategies to have the case designated by the prosecution as a non-capital one.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 A. Capital Standard No. 1: Determining Whether Case Is Death Case
 Counsel appointed in any case in which the death penalty is a possible punishment should,
 even if the prosecutor has not indicated that the death penalty will be sought, begin
 preparation for the case as one in which the death penalty will be sought while employing
 strategies to have the case designated by the prosecution as a non-capital one. Even if the
 case has not been filed as capital murder, if there exists any chance that the case could be
 amended to charge capital murder, counsel should utilize capital defense techniques and
 standards listed below. There can be no substitute for early attention to investigation and
 preservation of evidence.
  3. Theory of Case
 Commentary. Trials are often a contest between two versions of what happened,
 that offered by the prosecution and that offered by the defense. A theory of the
 case is needed to ensure that the defense version is coherent and believable and
 that it ties together the various "facts" of the case. It also provides a basis for the
 defense investigation to seek out witnesses and other evidence.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.7.1 General Trial Preparation
 A. As the investigations mandated by Guideline 11.4.1 produce information, counsel
 should formulate a defense theory. In doing so, counsel should consider both the
 guilt/innocence phase and the penalty phase, and seek a theory that will be effective
 through both phases.
 B. If inconsistencies between guilt/innocence and penalty phase defenses arise, counsel
 should seek to minimize them by procedural or substantive tactics.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.7.1 General Trial Preparation
 (a) As the investigations mandated by Standard 11.4.1 produce information, counsel
 should formulate a defense theory. In doing so, counsel should consider both the
 guilt/innocence phase and the penalty phase, and seek a theory that will be effective
 through both phases.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 I. Capital Standard No. 9: General Trial Preparation
 1. As the investigations mandated by Capital Standard No. 2 produce information,
 counsel should formulate a defense theory. In doing so, counsel should consider
 both the guilt/innocence phase and the penalty phase, and seek a theory that will
 be effective through both phases.
  4. Independent Investigation
 Commentary. The ABA and NLADA standards for investigating duties of defense
 counsel are virtually identical in their specifications. The Nebraska standards closely
 follow these two national standards. See also the standards relating to investigation
 in Compendium Volume II, "Standards for Attorney Performance."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.4.1 Investigation
 A. Counsel should conduct independent investigations relating to the guilt/innocence
 phase and to the penalty phase of a capital trial. Both investigations should begin
 immediately upon counsel's entry into the case and should be pursued expeditiously.
 B. The investigation for preparation of the guilt/innocence phase of the trial should be
 conducted regardless of any admission or statement by the client concerning facts
 constituting guilt.
 C. The investigation for preparation of the sentencing phase should be conducted
 regardless of any initial assertion by the client that mitigation is not to be offered. This
 investigation should comprise efforts to discover all reasonably available mitigating
 evidence and evidence to rebut any aggravating evidence that may be introduced by
 the prosecutor.
 D. Sources of investigative information may include the following:
 1. Charging Documents:
 Copies of all charging documents in the case should be obtained and examined in
 the context of the applicable statues and precedents, to identify (inter alia):
 A. the elements of the charged offense(s), including the element(s) alleged to
 make the death penalty applicable;
 B. the defenses, ordinary and affirmative, that may be available to the
 substantive charge and to the applicability of the death penalty;
 C. any issues, constitutional or otherwise, (such as statutes of limitations or
 double jeopardy) which can be raised to attack the charging documents.
 2. The Accused:
 An interview of the client should be conducted within 24 hours of counsel's entry
 into the case, unless there is a good reason for counsel to postpone this interview.
 In that event, the interview should be conducted as soon as possible after
 counsel's appointment. As soon as is appropriate, counsel should cover A-E
 below (if this is not possible during the initial interview, these steps should be
 accomplished as soon as possible thereafter):
 A. Seek information concerning the incident or events giving rise to the
 charge(s), and any improper police investigative practice or prosecutorial
 conduct which affects the client's rights.
 B. Explore the existence of other potential sources of information relating to the
 offense, the client's mental state, and the presence or absence of any
 aggravating factors under the applicable death penalty statute and any
 mitigating factors.
 C. Collect information relevant to the sentencing phase of trial including, but
 not limited to, medical history (mental and physical illness or injury, alcohol
 and drug use, birth trauma and developmental delays); educational history
 (achievement, performance and behavior); special educational needs
 including cognitive limitations and learning disabilities; military history (type
 and length of service, conduct, special training); employment and training
 history (including skills and performance, and barriers to employability);
 family and social history (including physical, sexual or emotional abuse);
 prior adult and juvenile record; prior correctional experience (including
 conduct on supervision and in institutions, education or training, and clinical
 services); and religious and cultural influences.
 D. Seek necessary releases for securing confidential records relating to any of
 the relevant histories.
 E. Obtain names of collateral persons or sources to verify, corroborate, explain
 and expand upon information obtained in C above.
 3. Potential Witnesses:
 Counsel should consider interviewing potential witnesses, including:
 A. eyewitnesses or other witnesses having purported knowledge of events
 surrounding the offense itself;
 B. witnesses familiar with aspects of the client's life history that might affect the
 likelihood that the client committed the charged offense(s), possible
 mitigating reasons for the offense(s), and/or other mitigating evidence to
 show why the client should not be sentenced to death;
 C. members of the victim's family opposed to having the client killed. Counsel
 should attempt to conduct interviews of potential witnesses in the presence
 of a third person who will be available, if necessary, to testify as a defense
 witness at trial. Alternatively, counsel should have an investigator or
 mitigation specialist conduct the interviews.
 4. The Police and Prosecution:
 Counsel should make efforts to secure information in the possession of the
 prosecution or law enforcement authorities, including police reports. Where
 necessary, counsel should pursue such efforts through formal and informal
 discovery unless a sound tactical reason exists for not doing so.

  5. Physical Evidence:
 Where appropriate, counsel should make a prompt request to the police or
 investigative agency for any physical evidence or expert reports relevant to the
 offense or sentencing.
 6. The Scene:
 Where appropriate, counsel should attempt to view the scene of the alleged
 offense. This should be done under circumstances as similar as possible to those
 existing at the time of the alleged incident (e.g., weather, time of day, and lighting
 conditions).
 7. Expert Assistance:
 Counsel should secure the assistance of experts where it is necessary or
 appropriate for:
 A. preparation of the defense;
 B. adequate understanding of the prosecution's case;
 C. rebuttal of any portion of the prosecution's case at the guilt/innocence phase
 or the sentencing phase of the trial;
 D. presentation of mitigation. Experts assisting in investigation and other
 preparation of the defense should be independent and their work product
 should be confidential to the extent allowed by law. Counsel and support
 staff should use all available avenues including signed releases, subpoenas,
 and Freedom of Information Acts, to obtain all necessary information.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.4.1 Investigation
 a. Counsel should conduct independent investigations relating to the guilt/innocence
 phase and to the penalty phase of a capital trial. Both investigations should begin
 immediately upon counsel's entry into the case and should be pursued expeditiously.
 b. The investigation for preparation of the guilt/innocence phase of the trial should be
 conducted regardless of any admission or statement by the client concerning facts
 constituting guilt.
 c. The investigation for preparation of the sentencing phase should be conducted
 regardless of any initial assertion by the client that mitigation is not to be offered. This
 investigation should comprise efforts to discover all reasonably available mitigating
 evidence and evidence to rebut any aggravating evidence that may be introduced by
 the prosecutor.
 d. Sources of investigative information may include the following:
 (1) Charging documents:
 Copies of all charging documents in the case should be obtained and examined in
 the context of the applicable statues and precedents, to identify (inter alia):
 A. the elements of the charged offense(s), including the element(s) alleged to
 make the death penalty applicable;
 B. the defenses, ordinary and affirmative, that may be available to the
 substantive charge and to the applicability of the death penalty;
 C. any issues, constitutional or otherwise, (such as statutes of limitations or
 double jeopardy) which can be raised to attack the charging documents.
 (2) An in-depth interview of the client should be conducted within 24 hours of
 counsel's entry into the case unless there is a good reason for counsel to postpone
 this interview. In that event, the interview should be conducted as soon as
 possible after counsel's appointment. As soon as is appropriate, counsel should
 cover A-E below (if this is not possible during the initial interview, these steps
 should be accomplished as soon as possible thereafter):
 A. Seek information concerning the incident or events giving rise to the
 charge(s), and any improper police investigative practice or prosecutorial
 conduct which affects the client's rights.
 B. Explore the existence of other potential sources of information relating to the
 offense, the client's mental state, and the presence or absence of any
 aggravating factors under the applicable death penalty statute and any
 mitigating factors.
 C. Collect information relevant to the sentencing phase of trial including, but
 not limited to, medical history (mental and physical illness or injury, alcohol
 and drug use, birth trauma and developmental delays); educational history
 (achievement, performance and behavior); special educational needs
 (including cognitive limitations and learning disabilities); military history
 (type and length of service, conduct, special training); employment and
 training history (including skills and performance, and barriers to
 employability); family and social history (including physical, sexual or
 emotional abuse); prior adult and juvenile record; prior correctional
 experience (including conduct on supervision and in institutions, education or
 training, and clinical services); and religious and cultural influences.
 D. Seek necessary releases for securing confidential records relating to any of
 the relevant histories.
 E. Obtain names of collateral persons or sources to verify, corroborate, explain
 and expand upon information obtained in (C) above.
 (3) Potential witnesses:
 Counsel should consider interviewing potential witnesses, including:
 A. eyewitnesses or other witnesses having purported knowledge of events
 surrounding the offense itself;
 B. witnesses familiar with aspects of the client's life history that might affect the
 likelihood that the client committed the charged offense(s), possible
 mitigating reasons for the offense(s), and/or other mitigating evidence to
 show why the client should not be sentenced to death;
 C. members of the victim's family opposed to having the client killed.
 Counsel should attempt to conduct interviews of potential witnesses in the
 presence of a third person who will be available, if necessary, to testify as a
 defense witness at trial. Alternatively, counsel should have an investigator or
 mitigation specialist conduct the interviews.
 (4) The police and prosecution:
 Counsel should make efforts to secure information in the possession of the
 prosecution or law enforcement authorities, including police reports. Where
 necessary, counsel should pursue such efforts through formal and informal
 discovery unless a sound tactical reason exists for not doing so.
 (5) Physical evidence:
 Where appropriate, counsel should make a prompt request to the police or
 investigative agency for any physical evidence or expert reports relevant to the
 offense or sentencing.
 (6) The scene:
 Where appropriate, counsel should attempt to view the scene of the alleged
 offense. This should be done under circumstances as similar as possible to those
 existing at the time of the alleged incident (e.g., weather, time of day, and lighting
 conditions).
 (7) Expert assistance:
 Counsel should secure the assistance of experts where it is necessary or
 appropriate for:
 A. preparation of the defense;
 B. adequate understanding of the prosecution's case;
 C. rebuttal of any portion of the prosecution's case at the guilt/innocence phase
 or the sentencing phase of the trial;
 D. Presentation of mitigation.
 Experts assisting in investigation and other preparation of the defense should be
 independent and their work product should be confidential to the extent allowed
 by law. Counsel and support staff should use all available avenues including
 signed releases, subpoenas, and Freedom of Information Acts, to obtain all
 necessary information.

  Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VIII. Performance Standards for Counsel in Capital Cases
 B. Capital Standard No. 2: Investigation
 Counsel should conduct independent investigations relating to the guilt/innocence and the
 penalty phases of a capital trial. Both investigations should begin immediately upon
 counsel's entry into the case and should be pursued expeditiously.
 The investigation for preparation of the guilt/innocence phase of the trial should be
 conducted regardless of any admission or statement by the client concerning facts
 constituting guilt.
 The investigation for the sentencing phase must be conducted regardless of any initial
 assertion by the client that mitigation is not to be offered. This investigation should
 comprise efforts to discover all mitigating evidence and evidence to rebut any aggravating
 evidence that may be introduced by the prosecutor.
 Sources of investigative information may include the following:
 1. Charging Documents
 Copies of all charging documents in the case should be obtained and examined in
 the context of the applicable statutes and precedents, to identify (inter alia):
 1.1 The elements of the charged offense(s), including the element(s) alleged to
 make the death penalty applicable;
 1.2 The defenses, ordinary and affirmative, that may be available to the
 substantive charge and to the applicability of the death penalty;
 1.3 Any issues, constitutional or otherwise, (such as statutes of limitations or
 double jeopardy) which can be raised to attack the charging documents.
 2. The Accused
 An interview of the client should be conducted within 24 hours of counsel's entry
 into the case, unless there is a good reason for counsel to postpone this interview.
 In the event there is a good reason to postpone this interview, it should be
 conducted as soon as possible after counsel's appointment. As soon as is
 appropriate, counsel should cover [the steps] below (if this is not possible during
 the initial interview, these steps should be accomplished as soon as possible
 thereafter):
 2.1 Seek information concerning the incident or events giving rise to the
 charge(s), and any improper police investigative practice or prosecutorial
 conduct which affects the client's rights.
 2.2 Explore the existence of other potential sources of information relating to the
 offense, the client's mental state, and the presence or absence of any
 aggravating factors under the applicable death penalty statute and any
 mitigating factors.
 2.3 Collect information relevant to the sentencing phase of trial including, but not
 limited to, medical history (mental and physical illness or injury, alcohol and
 drug use, birth trauma and developmental delays); educational history
 (achievement, performance and behavior, and special educational needs
 including cognitive limitations and learning disabilities); military history (type
 and length of service, conduct, special training); employment and training
 history (including skills and performance, and barriers to employability);
 family and social history (including physical, sexual or emotional abuse);
 prior adult and juvenile record; prior correctional experience (including
 conduct on supervision and in institutions, education or training, and clinical
 services); and religious and cultural influences.
 2.4 Seek necessary releases for securing confidential records relating to any of
 the relevant histories.
 2.5 Obtain names of collateral persons or sources to verify, corroborate, explain
 and expand upon information obtained in 2.3 above.
 3. Potential Witnesses
 Counsel generally should interview potential witnesses, including:
 3.1 Eyewitnesses or other witnesses having purported knowledge of events
 surrounding the offense itself;
 3.2 Witnesses familiar with aspects of the client's life history that might affect the
 likelihood that the client committed the charged offense(s), possible
 mitigating reasons for the offense(s), possible mitigating evidence to show
 why the client should not be sentenced to death;
 3.3 Members of the victim's family.
 Counsel should attempt to conduct interviews of potential witnesses in the
 presence of a third person who will be available, if necessary, to testify as a
 defense witness at trial. Alternatively, counsel should have an investigator or
 mitigation specialist conduct the interviews.
 4. The Police and Prosecution
 Counsel should make efforts to secure information in the possession of the
 prosecution or law enforcement authorities, including police reports. Where
 necessary, counsel should pursue such efforts through formal and informal
 discovery unless a sound tactical reason exists for not doing so. Counsel should
 establish a reliable system of tracking the receipt of all information.
 5. Physical Evidence
 Counsel should, immediately upon entry into the case, make a prompt request to
 the police or investigative agency and prosecutor for preservation of all physical
 evidence, field notes, electronic recordings of police dispatch and emergency
 numbers or expert reports made in connection with the investigation, unless a
 sound tactical reason exists for refraining from doing this.
 6. The Scene
 Where possible, counsel should attempt to view the scene of the alleged offense.
 This should be done under circumstances as similar as possible to those existing at
 the time of the alleged incident (weather, time of day, and lighting conditions).
 7. Expert Assistance
 Counsel should secure the assistance of experts where it is necessary or
 appropriate for:
 a. preparation of the defense;
 b. adequate understanding of the prosecution's case;
 c. rebuttal of any portion of the prosecution's case at the guilt/innocence phase
 or the sentencing phase of the trial;
 d. presentation of mitigation.
 Experts assisting in investigation and other preparation of the defense should be
 independent and their work product should be confidential to the extent allowed
 by law. Counsel and support staff should use all available avenues including
 signed releases, subpoenas, and Freedom of Information Acts, to obtain all
 necessary information.

  5. Close Contact with Client
 Commentary. See also Compendium Volume II, "Standards for Attorney
 Performance."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.4.2 Client Contact
 Trial counsel should maintain close contact with the client throughout preparation of the
 case, discussing (inter alia) the investigation, potential legal issues that exist or develop,
 and the development of a defense theory.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.4.2 Client Contact
 Trial counsel should maintain close contact with the client throughout preparation of the
 case, discussing (inter alia) the investigation, potential legal issues that exist or develop,
 and the development of a defense theory.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VIII. Performance Standards for Counsel in Capital Cases

 C. Capital Standard No. 3: Client Contact
 Trial counsel should maintain close contact with the client throughout preparation of
 the case, discussing (inter alia) the investigation, potential legal issues that exist or
 develop, and the development of a defense theory. Maintenance of good relations
 with the client and his/her family is absolutely essential to effect a competent defense.

  6. Pretrial Motions
 Commentary. See also Compendium Volume II, "Standards for Attorney
 Performance."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.5.1 The Decision To File Pretrial Motions
 A. Counsel should consider filing a pretrial motion whenever there exists reason to
 believe that applicable law may entitle the client to relief or that legal and/or policy
 arguments can be made that the law should provide the requested relief.
 B. Counsel should consider all pretrial motions potentially available, and should evaluate
 them in light of the unique circumstances of a capital case, including the potential
 impact of any pretrial motion or ruling on the strategy for the sentencing phase, and
 the likelihood that all available avenues of appellate and postconviction relief will be
 sought in the event of conviction and imposition of a death sentence. Among the
 issues that counsel should consider addressing in a pretrial motion are:
 1. the pretrial custody of the accused;
 2. the constitutionality of the implicated statute or statutes;
 3. the potential defects in the charging process;
 4. the sufficiency of the charging document;
 5. the propriety and prejudice of any joinder of charges or defendants in the charging
 document;
 6. the discovery obligations of the prosecution including disclosure of aggravating
 factors to be used in seeking the death penalty, and any reciprocal discovery
 obligations of the defense;
 7. the suppression of evidence gathered as the result of violations of the Fourth,
 Fifth or Sixth Amendments to the United States Constitution, including:
 a. the fruits of illegal searches or seizures;
 b. involuntary statements or confessions; statements or confessions obtained in
 violation of the accused's right to counsel, or privilege against self-
 incrimination;
 c. unreliable identification testimony which would give rise to a substantial
 likelihood of irreparable misidentification;
 8. suppression of evidence gathered in violation of any right, duty or privilege
 arising out of state or local law;
 9. access to resources which may be denied to the client because of indigency and
 which may be necessary in the case, including independent and confidential
 investigative resources, jury selection assistance, and expert witnesses concerning
 not only the charged offense(s) and the client's mental condition, but also the
 criminal justice system itself;
 10. the defendant's right to a speedy trial;
 11. the defendant's right to a continuance in order to adequately prepare his or her
 case;
 12. matters of evidence or procedure at either the guilt/innocence or penalty phase of
 trial which may be appropriately litigated by means of a pretrial motion in limine.
 including requests for sequestered, individual voir dire as to the death
 qualification of jurors and any challenges to overly restrictive rules or procedures;
 13. matters of trial or courtroom procedure;
 14. change of venue;
 15. abuse of prosecutorial discretion in seeking the death penalty;
 16. challenges to the process of establishing the jury venire.

 Guideline 11.6.2 The Contents of Plea Negotiations
 A. In order to develop an overall negotiation plan, counsel should be fully aware of and
 make sure the client is fully aware of:
 1. the maximum penalty that may be imposed for the charged offense(s) and any
 possible lesser included offenses;
 2. where applicable, any collateral consequences of potential penalties less than
 death, such as forfeiture of assets, deportation and civil liabilities, as well as direct
 consequences of potential penalties less than death, such as the possibility and
 likelihood of parole, place of confinement and good-time credits;
 3. the general range of sentences for similar offenses committed by defendants with
 similar backgrounds, and the impact of any applicable sentencing guidelines or
 mandatory sentencing requirements.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.5.1 The Decision to File Pretrial Motions
 (a) Counsel should consider filing a pretrial motion wherever there exists reason to believe
 that applicable law may entitle the client to relief or that legal and/or policy arguments
 can be made that the law should provide the requested relief.
 (b) Counsel should consider all pretrial motions potentially available, and should evaluate
 them in light of the unique circumstances of a capital case, including the potential
 impact of any pretrial motion or ruling on the strategy for the sentencing phase, and
 the likelihood that all available avenues of appellate and postconviction relief will be
 sought in the event of conviction and imposition of a death sentence. Among the
 issues that counsel should consider addressing in a pretrial motion are:
 1. the pretrial custody of the accused;
 2. the constitutionality of the implicated statute or statutes;
 3. the potential defects in the charging process;
 4. the sufficiency of the charging document;
 5. the propriety and prejudice of any joinder of charges or defendants in the charging
 document;
 6. the discovery obligations of the prosecution including disclosure of aggravating
 factors to be used in seeking the death penalty, and any reciprocal discovery
 obligations of the defense;
 7. the suppression of evidence gathered as the result of violations of the Fourth,
 Fifth or Sixth Amendments to the United States Constitution, including:
 A. the fruits of illegal searches or seizures;
 B. involuntary statements or confessions; statements or confessions obtained in
 violation of the accused's right to counsel, or privilege against self-
 incrimination;
 C. unreliable identification testimony which would give rise to a substantial
 likelihood of irreparable misidentification;
 8. suppression of evidence gathered in violation of any right, duty or privilege
 arising out of state or local law;
 9. access to resources which may be denied to the client because of indigency and
 which may be necessary in the case, including independent and confidential
 investigative resources, jury selection assistance, and expert witnesses concerning
 not only the charged offense(s) and the client's mental condition, but also the
 criminal justice system itself;
 10. the defendant's right to a speedy trial;
 11. the defendant's right to a continuance in order to adequately prepare his or her
 case;
 12. matters of evidence or procedure at either the guilt/innocence or penalty phase of
 trial which may be appropriately litigated by means of a pretrial motion in limine,
 including requests for sequestered, individual voir dire as to the death
 qualification of jurors and any challenges to overly restrictive rules or procedures;
 13. matters of trial or courtroom procedure;
 14. change of venue;
 15. abuse of prosecutorial discretion in seeking the death penalty;
 16. challenges to the process of establishing the jury venire.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 D. Capital Standard No. 4: The Decision to File Pretrial Motions
 1. Counsel should file pretrial motions whenever there exists reason to believe that
 applicable law may entitle the client to relief or that legal and/or policy arguments
 can be made that the law should provide the requested relief.
 2. Counsel should consider every pretrial motion potentially available, and should
 evaluate all motions in light of the unique circumstances of a capital case,
 including the potential impact of any pretrial motion or ruling on the strategy for
 the sentencing phase, and the likelihood that all available avenues of appellate and
 postconviction relief will be sought in the event of conviction and imposition of a
 death sentence. Among the issues that counsel should consider addressing in a
 pretrial motion are:
 a. the pretrial custody of the accused;
 b. the constitutionality of the implicated statute or statutes;
 c. the potential defects in the charging process;
 d. the sufficiency of the charging document;
 e. the propriety and prejudice of any joinder of charges or defendants in the
 charging document;
 f. the discovery obligations of the prosecution including disclosure of
 aggravating factors to be used in seeking the death penalty, and any
 reciprocal discovery obligations of the defense;
 g. the suppression of evidence gathered as the result of violations of the Fourth,
 Fifth, or Sixth Amendments to the United States Constitution, including:
 (i) the fruits of illegal searches or seizures
 (ii) involuntary statements or confessions; statements or confessions in
 violation of the accused's right to counsel or privilege against self
 incrimination;
 (iii) unreliable identification testimony which would give rise to substantial
 likelihood of irreparable misidentification;
 h. suppression of evidence gathered in violation of any right, duty or privilege
 arising out of state or local law;
 i. access to resources which may be denied to the client because of indigency
 and which may be necessary in the case, including independent and
 confidential investigative resources, jury selection assistance, and expert
 witnesses concerning not only the charged offense(s) and the client's mental
 condition, but also the criminal justice system itself;
 j. the defendant's right to a speedy trial;
 k. the defendant's right to continuance in order to adequately prepare his or her
 case;
 l. matters of evidence or procedure at either the guilt/innocence or penalty
 phase of trial which may be appropriately litigated by means of a pretrial
 motion in limine, including requests for sequestered, individual voir dire,
 especially as to publicity and the death qualification of jurors and any
 challenges to overly restrictive rules or procedures;
 m. matters of trial or courtroom procedure;
 n. change of venue;
 o. abuse of prosecutorial discretion in seeking the death penalty;
 p. challenges to the process of establishing the jury venire.

  7. Plea Negotiations
 Commentary. Most criminal cases are resolved by guilty pleas. Cases involving
 homicide charges are no different in this regard.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.6.1 The Plea Negotiation Process
 A. Counsel should explore with the client the possibility and desirability of reaching a
 negotiated disposition of the charges rather than proceeding to a trial. In so doing,
 counsel should fully explain the rights that would be waived by a decision to enter a
 plea instead of proceeding to trial, and should explain the legal and/or factual
 considerations that bear on the potential results of going to trial.
 B. Counsel should ordinarily obtain the consent of the client before entering into any plea
 negotiations.
 C. Counsel should keep the client fully informed of any continued plea discussion or
 negotiations, convey to the client any offers made by the prosecution for a negotiated
 settlement and discuss with the client possible strategies for obtaining an offer from the
 prosecution.
 D. Counsel should not accept any plea agreement without the client's express
 authorization.
 E. The existence of ongoing plea negotiations with the prosecution does not relieve
 counsel of the obligation to take steps necessary to prepare a defense. If a negotiated
 disposition would be in the best interest of the client, initial refusals by the prosecutor
 to negotiate should not prevent counsel from making further efforts to negotiate.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.6.1 The Plea Negotiations Process
 (a) Counsel should explore with the client the possibility and desirability of reaching a
 negotiated disposition of the charges rather than proceeding to a trial. In so doing,
 counsel should fully explain the rights that would be waived by a decision to enter a
 plea instead of proceeding to trial, and should explain the legal and/or factual
 considerations that bear on the potential results of going to trial.
 (b) Counsel should ordinarily obtain the consent of the client before entering into any plea
 negotiations.
 (c) Counsel should keep the client fully informed of any continued plea discussion or
 negotiations, convey to the client any offers made by the prosecution for a negotiated
 settlement and discuss with the client possible strategies for obtaining an offer from the
 prosecution.
 (d) Counsel should not accept any plea agreement without the client's express
 authorization.
 (e) The existence of ongoing plea negotiations with the prosecution does not relieve
 counsel of the obligation to take steps necessary to prepare a defense. If a negotiated
 disposition would be in the best interest of the client, initial refusals by the prosecutor
 to negotiate should not prevent counsel from making further efforts to negotiate.

 Standard 11.6.2 The Contents of Plea Negotiations
 (a) In order to develop an overall negotiation plan, counsel should be fully aware of and
 make sure the client is fully aware of:
 1. the maximum penalty that may be imposed for the charged offense(s) and any
 possible lesser included offenses;
 2. where applicable, any collateral consequences of potential penalties less than
 death, such as forfeiture of assets, deportation and civil liabilities, as well as direct
 consequences of potential penalties less than death, such as the possibility and
 likelihood of parole, place of confinement and good-time credits;
 3. the general range of sentences for similar offenses committed by defendants with
 similar backgrounds, and the impact of any applicable sentencing guidelines or
 mandatory sentencing requirements.
 (b) In developing a negotiation strategy, counsel should be completely familiar with, inter
 alia:
 1. concessions that the client might offer, such as:
 a. an agreement not to proceed to trial on the merits of the charges;
 b. an agreement not to assert or further litigate particular legal issues;
 c. an agreement to provide the prosecution with assistance in investigating or
 prosecuting the present case or other alleged criminal activity;
 d. an agreement to engage in or refrain from any other conduct, appropriate to
 the case.
 2. benefits the client might obtain from a negotiated settlement, including inter alia:
 a. a guarantee that the death penalty will not be imposed;
 b. an agreement that the defendant will receive, with the assent of the court, a
 specified sentence;
 c. an agreement that the prosecutor will not advocate a certain sentence, will
 not present certain information to the court, or will engage in or refrain from
 engaging in other actions with regard to sentencing;
 d. an agreement that one or more of multiple charges will be reduced or dismissed;
 e. an agreement that the client will not be subject to further investigation or
 prosecution for uncharged alleged or suspected criminal conduct;
 f. an agreement that the client may enter a conditional plea to preserve the right
 to further contest certain issues affecting the validity of the conviction.
 (c) In conducting plea negotiations, counsel should be familiar with:
 1. the types of pleas that may be agreed to, such as a plea of guilty, a conditional
 plea of guilty, or a plea of nolo contendere or other plea which does not require
 the client to personally acknowledge guilt;
 2. the advantages and disadvantages of each available plea according to the
 circumstances of the case;
 3. whether a plea agreement can be made binding on the court and on penal/parole
 authorities.
 (d) In conducting plea negotiations, counsel should attempt to become familiar with the
 practice and policies of the particular jurisdiction, the judge and prosecuting authority,
 the family of the alleged victim and any other persons or entities which may affect the
 content and likely results of plea negotiations.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 E. Capital Standard No. 5: The Plea Negotiations Process
 1. Counsel should explore with the client the possibility and desirability of reaching a
 negotiated disposition of the charges rather than proceeding to a trial. In so
 doing, counsel should fully explain the rights that would be waived by a decision
 to enter a plea instead of proceeding to trial, and should explain the legal and/or
 factual considerations that bear on the potential results of going to trial.
 2. Counsel should ordinarily obtain the consent of the client before entering into any
 plea negotiations.
 3. Counsel should keep the client fully informed of any continued plea discussion or
 negotiations, convey to the client any offers made by the prosecution for a
 negotiated settlement and discuss with the client possible strategies for obtaining
 an offer from the prosecution.
 4. Counsel should not accept any plea agreement without the client's express
 authorization.
 5. The existence of ongoing plea negotiations with the prosecution does not relieve
 counsel of the obligation to take steps necessary to prepare a defense. If a
 negotiated disposition would be in the best interest of the client, initial refusals by
 the prosecutor to negotiate should not prevent counsel from making further
 efforts to negotiate.
 F. Capital Standard No. 6: The Contents of Plea Negotiations

 2. In developing a negotiation strategy, counsel should be completely familiar with,
 inter alia:
 a. Concessions that the client might offer, such as:
 (i) an agreement not to proceed to trial on the merits of the charges;
 (ii) an agreement not to assert or further litigate particular legal issues;
 (iii) an agreement to provide the prosecution with assistance in investigating
 or prosecuting the present case or other alleged criminal activity;
 (iv) an agreement to engage in or refrain from any other conduct,
 appropriate to the case.
 b. Benefits the client might obtain from a negotiated settlement, including inter
 alia:
 (i) a guarantee that the death penalty will not be imposed;
 (ii) an agreement that the defendant will receive, with the assent of the
 court, a specified sentence;
 (iii) an agreement that the prosecutor will not advocate a certain sentence,
 will not present certain information to the court, or will engage in or
 refrain from engaging in other actions with regard to sentencing;
 (iv) an agreement that one or more of multiple charges will be reduced or
 dismissed;
 (v) an agreement that the client will not be subject to further investigation
 or prosecution for uncharged alleged or suspected criminal conduct;
 (vi) an agreement that the client may enter a conditional plea to preserve the
 right to further contest certain issues affecting the validity of the
 conviction.
 3. In conducting plea negotiations, counsel should be familiar with:
 a. the types of pleas that may be agreed to, such as a plea of guilty, a conditional
 plea of guilty, or a plea of nolo contendere or other plea which does not
 require the client to personally acknowledge guilt;
 b. the advantages and disadvantages of each available plea according to the
 circumstances of the case;
 c. whether a plea agreement can be made binding on the court and on
 penal/parole authorities.
 4. In conducting plea negotiations, counsel should attempt to become familiar with
 the practice and policies of the particular jurisdiction, the judge and prosecuting
 authority, the family of the alleged victim and any other persons or entities which
 may affect the content and likely results of plea negotiations.
  8. Need to Inform Client of Plea Options
 Commentary. The client is the final decision-maker as to whether to plead guilty.
 The attorney's responsibility is to make sure that the plea decision is an informed
 one. The standards here spell out what information the client must have for that
 decision to be an informed decision.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.6.2 The Contents of Plea Negotiations
 A. In order to develop an overall negotiation plan, counsel should be fully aware of and
 make sure the client is fully aware of:
 1. the maximum penalty that may be imposed for the charged offense(s) and any
 possible lesser included offenses;
 2. where applicable, any collateral consequences of potential penalties less than
 death, such as forfeiture of assets, deportation and civil liabilities, as well as direct
 consequences of potential penalties less than death, such as the possibility and
 likelihood of parole, place of confinement and good-time credits;
 3. the general range of sentences for similar offenses committed by defendants with
 similar backgrounds, and the impact of any applicable sentencing guidelines or
 mandatory sentencing requirements.
 Guideline 11.6.3 The Decision to Enter a Plea of Guilty
 A. Counsel should inform the client of any tentative negotiated agreement reached with
 the prosecution, and explain to the client the full content of the agreement along with
 the advantages, disadvantages and potential consequences of the agreement.
 B. The decision to enter or to not enter a plea of guilty should be based solely on the
 client's best interest.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.6.2 The Contents of Plea Negotiations
 (a) In order to develop an overall negotiation plan, counsel should be fully aware of and
 make sure the client is fully aware of:
 1. the maximum penalty that may be imposed for the charged offense(s) and any
 possible lesser included offenses;
 2. where applicable, any collateral consequences of potential penalties less than
 death, such as forfeiture of assets, deportation and civil liabilities, as well as direct
 consequences of potential penalties less than death, such as the possibility and
 likelihood of parole, place of confinement and good-time credits;
 3. the general range of sentences for similar offenses committed by defendants with
 similar backgrounds, and the impact of any applicable sentencing guidelines or
 mandatory sentencing requirements.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 F. Capital Standard No. 6: The Contents of Plea Negotiations
 1. In order to develop an overall negotiation plan, counsel should be fully aware of
 and make sure the client is fully aware of:
 a. the maximum penalty that may be imposed for the charged offense(s) and any
 possible lesser included offenses;
 b. where applicable, any collateral consequences of potential penalties less than
 death, such as forfeiture of assets, deportation and civil liabilities, as well as
 direct consequences of potential penalties less than death, such as the
 possibility and likelihood of parole, place of confinement and good time
 credits;
 c. the general range of sentences for similar offenses committed by defendants
 with similar backgrounds, and the impact of any applicable sentencing
 guidelines or mandatory sentencing requirements.
  9. Explanation of Plea Contents and Implications
 Commentary. Once the client determines that a plea of guilty is in her or his best
 interests, the standards require defense counsel to fully explain the exact terms of
 the plea agreement and what will occur in court when the plea is entered. There
 should be no surprises at the plea hearing for the client, for counsel, or for the court.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.6.4 Entry of the Plea Before the Court
 A. Prior to the entry of the plea, counsel should:
 1. make certain that the client understands the rights he or she will waive by entering
 the plea and that the client's decision to waive those rights is knowing, voluntary
 and intelligent;
 2. make certain that the client fully and completely understands the conditions and
 limits of the plea agreement and the maximum punishment, sanctions and other
 consequences the accused will be exposed to by entering a plea;
 3. explain to the client the nature of the plea hearing and prepare the client for the
 role he or she will play in the hearing, including answering questions from the
 judge and providing a statement concerning the offense.
 B. During entry of the plea, counsel should make sure that the full content and conditions
 of the plea agreement are placed on the record before the court.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.6.3 The Decision to Enter a Plea of Guilty
 (a) Counsel should inform the client of any tentative negotiated agreement reached with
 the prosecution, and explain to the client the full content of the agreement along with
 the advantages, disadvantages and potential consequences of the agreement.
 (b) The decision to enter or to not enter a plea of guilty should be based solely on the
 client's best interest.
 Standard 11.6.4 Entry of the Plea Before the Court
 (a) Prior to the entry of the plea, counsel should:
 1. make certain that the client understands the rights he or she will waive by entering
 the plea and that the client's decision to waive those rights is knowing, voluntary
 and intelligent;
 2. make certain that the client fully and completely understands the conditions and
 limits of the plea agreement and the maximum punishment, sanctions and other
 consequences the client will be exposed to by entering a plea;
 3. explain to the client the nature of the plea hearing and prepare the client for the
 role he or she will play in the hearing, including answering questions from the
 judge and providing a statement concerning the offense.
 (b) During entry of the plea, counsel should make sure that the full content and conditions
 of the plea agreement are placed on the record before the court.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 G. Capital Standard No. 7: The Decision to Enter a Plea of Guilty
 1. Counsel should inform the client of any tentative negotiated agreement reached
 with the prosecution, and explain to the client the full content of the agreement
 along with the advantages, disadvantages and potential consequences of the
 agreement.
 2. The decision to enter or to not enter a plea of guilty should be based solely on the
 client's best interest.
 H. Capital Standard No. 8: Entry of the Plea Before the Court
 1. Prior to the entry of the plea, counsel should:
 a. make certain that the client understands the rights he or she will waive by
 entering the plea and that the client's decision to waive those rights is
 knowing, voluntary and intelligent;
 b. make certain that the client fully and completely understands the conditions
 and limits of the plea agreement and the maximum punishment, sanctions and
 other consequences the accused will be exposed to by entering a plea;
 c. explain to the client the nature of the plea hearing and prepare the client for
 the role he or she will play in the hearing, including answering questions from
 the judge and providing a statement concerning the offense.
 2. During entry of the pleas, counsel should make sure that the full content and
 conditions of the plea agreement are placed on the record before the court.

  G. Attorney Performance: Trial
 The standards in this section address the following:
 1. Preparing for voir dire
 2. Preserving objections to error
 3. Establishing a plan to avoid death sentence
 In addition to the standards herein, Compendium Volume II, "Standards for
 Attorney Performance," includes several other trial-related topics such as
 presenting evidence, responding to prosecution's case, etc.

  1. Preparing for Voir Dire
 Commentary. Jury selection may be the most important responsibility of the trial
 attorney. Jury selection in capital cases is especially complex as the standards in
 this section indicate.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.7.2 Voir Dire and Jury Selection
 A. Counsel should consider, along with potential legal challenges to the procedures for
 selecting the jury that would be available in any criminal case, whether any procedures
 have been instituted for selection of juries in capital cases that present potential legal
 bases for challenge.
 B. Counsel should be familiar with the precedents relating to questioning and challenging
 of potential jurors, including the procedures surrounding "death qualification"
 concerning any potential juror's beliefs about the death penalty. Counsel should be
 familiar with techniques for rehabilitating potential jurors whose initial indications of
 opposition to the death penalty make them possibly excludable.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.7.2 Voir Dire and Jury Selection
 (a) Counsel should consider, along with potential legal challenges to the procedures for
 selecting the jury that would be available in any criminal case, whether any procedures
 have been instituted for selection of juries in capital cases that present potential legal
 bases for challenge.
 (b) Counsel should be familiar with the precedents relating to questioning and challenging
 of potential jurors, including the procedures surrounding "death qualification"
 concerning any potential juror's beliefs about the death penalty. Counsel should be
 familiar with techniques for rehabilitating potential jurors whose initial indications of
 opposition to the death penalty make them possibly excludable.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 J. Capital Standard No. 10: Voir Dire and Jury Selection
 1. Counsel should consider, along with potential legal challenges to the procedures
 for selecting the jury that would be available in any criminal case, whether any
 procedures have been instituted for selection of juries in capital cases that present
 potential legal bases for challenge.
  2. Preserving Objections to Error
 Commentary. Implicit in these standards is the requirement that defense counsel
 protect the client from being prejudiced by erroneous entry of evidence detrimental
 to the client's interests. The Nebraska standard also suggests that counsel may
 have strategic reasons for not always making objections.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.7.3 Objection to Error and Preservation of Issues for Postjudgment
 Review
 Counsel should consider, when deciding whether to object to legal error and whether to
 assert on the record a position regarding any procedure or ruling, that postjudgment
 review in the event of conviction and sentence is likely, and counsel should take steps
 where appropriate to preserve, on all applicable state and federal grounds, any given
 question for review.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.7.3 Objection to Error and Preservation of Issues for Postjudgment
 Review
 Counsel should consider, when deciding whether to object to legal error and whether to
 assert on the record a position regarding any procedure or ruling, that postjudgment
 review in the event of conviction and sentence is likely, and counsel should take steps
 where appropriate to preserve, on all applicable state and federal grounds, any given
 question for review.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 K. Capital Standard No. 10: Objection to Error and Preservation of Issues for
 Postjudgment Review
 1. Counsel should consider, when deciding whether to object to legal error and
 whether to assert on the record a position regarding any procedure or ruling, that
 postjudgment review in the event of conviction and sentence is likely, and counsel
 should take steps where appropriate to preserve, on all applicable state and
 Federal grounds, any given question for review. While there may be a sound
 reason to forgo an objection, counsel should presume that all possible objections
 should be made.
  3. Establishing a Plan to Avoid Death Sentence
 Commentary. Trials in capital cases involve two separate hearings determination
 of guilt/innocence and sentencing. Standards for formulating a theory of the case
 for the guilt phase were presented earlier. Similarly, counsel must also establish a
 plan to avoid a death sentence should a finding of guilty occur. As the NLADA and
 Nebraska standards make plain, these two trial components may have inherent
 conflicts that will need to be minimized.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.8.3 Preparation for the Sentencing Phase
 A. As set out in Guideline 11.4.1, preparation for the sentencing phase, in the form of
 investigation, should begin immediately upon counsel's entry into the case. Counsel
 should seek information to present to the sentencing entity or entities in mitigation or
 explanation of the offense and to rebut the prosecution's sentencing case.
 B. Counsel should discuss with the client early in the case the sentencing alternatives
 available, and the relationship between strategy for the sentencing phase and for the
 guilt/innocence phase.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.7.1 General Trial Preparation

 (b) If inconsistencies between guilt/innocence and penalty phase defense arise, counsel
 should seek to minimize them by procedural or substantive tactics.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 I. Capital Standard No. 9: General Trial Preparation

 (2) If inconsistencies between guilt/innocence and penalty phase defense arise,
 counsel should seek to minimize them by procedural or substantive tactics.

  H. Attorney Performance: Sentencing
 The standards in this section address the following:
 1. Preparing for sentencing
 2. Conducting sentencing investigation
 3. Considering own sentencing report
 4. Preparing for prosecutor arguments at sentencing
 5. Considering full scope of defense arguments
 Compare the standards set forth here to those set forth in Compendium Volume II,
 "Standards for Attorney Performance."

  1. Preparing for Sentencing
 Commentary. The ABA, NLADA, and Nebraska standards present the same
 recommendations for sentencing preparation. Perhaps the most significant of these
 is the requirement that counsel begin preparation for the sentencing hearing as soon
 as possible because the issues and evidence presented at a sentencing hearing are
 both different from and sometimes more difficult to identify than those presented at
 the guilt phase. This requirement goes hand in hand with the requirement to identify
 and present all mitigating factors.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.8.1 Obligation of Counsel at the Sentencing Phase of Death Penalty
 Cases
 Counsel should be aware that the sentencing phase of a death penalty trial is
 constitutionally different from sentencing proceedings in other criminal cases.
 Guideline 11.8.2 Duties of Counsel Regarding Sentencing Options, Consequences
 and Procedures
 A. Counsel should be familiar with the procedures for capital sentencing in the given
 jurisdiction, with the prosecutor's practice in preparing for and presenting the
 prosecution's case at the sentencing phase, and with the case law and rules regarding
 what information may be presented to the sentencing entity or entities, and how that
 information may be presented. Counsel should insist that the prosecutor adhere to the
 applicable evidentiary rules unless a valid strategic reason exists for counsel not to
 insist.
 B. If the client has chosen not to proceed to trial and a plea of guilty or its equivalent has
 been negotiated and entered by counsel in accordance with Standards 11.6.1 through
 11.6.4, counsel should seek to ensure compliance with all portions of the plea
 agreement beneficial to the client.
 C. Counsel should seek to ensure that the client is not harmed by improper, inaccurate or
 misleading information being considered by the sentencing entity or entities in
 determining the sentence to be imposed.
 D. Counsel should ensure that all reasonably available mitigating and favorable
 information consistent with the defense sentencing theory is presented to the
 sentencing entity or entities in the most effective possible way.
 Guideline 11.8.3 Preparation for the Sentencing Phase

 C. Prior to the sentencing phase, counsel should discuss with the client the specific
 sentencing phase procedures of the jurisdiction and advise the client of steps being
 taken in preparation for sentencing. Counsel should discuss with the client the
 accuracy of any information known to counsel that will be presented to the sentencing
 entity or entities, and the strategy for meeting the prosecution's case.
 D. If the client will be interviewed by anyone other than people working with defense
 counsel, counsel should prepare the client for such interview(s). Counsel should
 discuss with the client the possible impact on the sentence and later potential
 proceedings (such as appeal, subsequent retrial or resentencing) of statements the
 client may give in the interviews.
 E. Counsel should consider, and discuss with the client, the possible consequences of
 having the client testify or make a statement to the sentencing entity or entities.
 F. In deciding which witnesses and evidence to prepare for presentation at the sentencing
 phase, counsel should consider the following:
 1. Witnesses familiar with and evidence relating to the client's life and development,
 from birth to the time of sentencing, who would be favorable to the client,
 explicative of the offense(s) for which the client is being sentenced, or would
 contravene evidence presented by the prosecutor;
 2. Expert witnesses to provide medical, psychological, sociological or other
 explanations for the offense(s) for which the client is being sentenced, to give a
 favorable opinion as to the client's capacity for rehabilitation, etc. and/or to rebut
 expert testimony presented by the prosecutor;
 3. Witnesses with knowledge and opinions about the lack of effectiveness of the
 death penalty itself;
 4. Witnesses drawn from the victim's family or intimates who are willing to speak
 against killing the client.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.8.1 Obligation of Counsel at the Sentencing Phase of Death Penalty
 Cases
 Counsel should be aware that the sentencing phase of a death penalty trial is
 constitutionally different from sentencing proceedings in other criminal cases.
 Standard 11.8.2 Duties of Counsel Regarding Sentencing Options, Consequences
 and Procedures
 (a) Counsel should be familiar with the procedures for capital sentencing in the given
 jurisdiction, with the prosecutor's practice in preparing for and presenting the
 prosecution's case at the sentencing phase, and with the case law and rules regarding
 what information may be presented to the sentencing entity or entities, and how that
 information may be presented. Counsel should insist that the prosecutor adhere to the
 applicable evidentiary rules unless a valid strategic reason exists for counsel not to
 insist.
 (b) If the client has chosen not to proceed to trial and a plea of guilty or its equivalent has
 been negotiated and entered by counsel in accordance with Standards 11.6.1 through
 11.6.4, counsel should seek to ensure compliance with all portions of the plea
 agreement beneficial to the client.
 (c) Counsel should seek to ensure that the client is not harmed by improper, inaccurate or
 misleading information being considered by the sentencing entity or entities in
 determining the sentence to be imposed.
 (d) Counsel should ensure that all reasonably available mitigating and favorable
 information consistent with the defense sentencing theory is presented to the
 sentencing entity or entities in the most effective possible way.
 (e) Counsel should develop a plan for seeking to avoid the death penalty and to achieve
 the least restrictive and burdensome sentencing alternative which can reasonably be
 obtained.
 Standard 11.8.3 Preparation for the Sentencing Phase
 (a) As set out in Standard 11.4.1, preparation for the sentencing phase, in the form of
 investigation, should begin immediately upon counsel's entry into the case. Counsel
 should seek information to present to the sentencing entity or entities in mitigation or
 explanation of the offense and to rebut the prosecution's sentencing case.
 (b) Counsel should discuss with the client early in the case the sentencing alternatives
 available, and the relationship between strategy for the sentencing phase and for the
 guilt/innocence phase.
 (c) Prior to the sentencing phase, counsel should discuss with the client specific
 sentencing phase procedures of the jurisdiction and advise the client of steps being
 taken in preparation for sentencing. Counsel should discuss with the client the
 accuracy of any information known to counsel that will be presented to the sentencing
 entity or entities, and the strategy for meeting the prosecution's case.
 (d) If the client will be interviewed by anyone other than people working with defense
 counsel, counsel should prepare the client for such interview(s). Counsel should
 discuss with the client the possible impact on the sentence and later potential
 proceedings (such as appeal, subsequent retrial or resentencing) of statements the
 client may give in the interviews.
 (e) Counsel should consider, and discuss with the client, the possible consequences of
 having the client testify or make a statement to the sentencing entity or entities.
 (f) In deciding which witnesses and evidence to prepare for presentation at the sentencing
 phase, counsel should consider the following:
 1. Witnesses familiar with and evidence relating to the client's life and development,
 from birth to the time of sentencing, who would be favorable to the client,
 explicative of the offense(s) for which the client is being sentenced, or would
 contravene evidence presented by the prosecutor;
 2. Expert witnesses to provide medical, psychological, sociological or other
 explanations for the offense(s) for which the client is being sentenced, to give a
 favorable opinion as to the client's capacity for rehabilitation, etc. and/or to rebut
 expert testimony presented by the prosecutor;
 3. Witnesses with knowledge and opinions about the lack of effectiveness of the
 death penalty itself;
 4. Witnesses drawn from the victim's family or intimates who are willing to speak
 against killing the client.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 L. Capital Standard No. 12: Obligation of Counsel at the Sentencing Phase of Death
 Penalty Cases
 1. Counsel must be aware that the sentencing phase of a death penalty trial is
 constitutionally different from sentencing proceedings in other criminal cases.
 Complete familiarity with U.S. Supreme Court precedents is required.
 M. Capital Standard No. 13: Duties of Counsel Regarding Sentencing Options,
 Consequences and Procedures
 1. Counsel should be familiar with the procedures for capital sentencing in the given
 jurisdiction, with the prosecutor's practice in preparing for and presenting the
 prosecutor's case at the sentencing phase, and with the case law and rules
 regarding what information may be presented to the sentencing entity or entities,
 and how that information may be presented. Counsel should insist that the
 prosecutor adhere to the applicable evidentiary rules unless a valid strategic
 reason exists for counsel not to insist.
 2. If the client has chosen not to proceed to trial and a plea of guilty or its equivalent
 has been negotiated and entered in accordance with Standards 5 through 8,
 counsel must seek to ensure compliance with all portions of the plea agreement
 beneficial to the client.
 3. Counsel must seek to ensure that the client is not harmed by improper, inaccurate
 or misleading information being considered by the sentencing jury and judge in
 determining the sentence to be imposed.
 4. Counsel should ensure that all reasonably available mitigating and favorable
 information consistent with the defense sentencing theory is presented to the
 sentencing jury and judge in the most effective possible way.
 N. Capital Standard No. 14: Preparation for the Sentencing Phase
 1. As set out in Standard 2, preparation for the sentencing phase, in the form of
 investigation, should begin immediately upon counsel's entry into the case.
 Counsel must seek information to present to the sentencing jury and judge in
 mitigation or explanation of the offense and to rebut the prosecution's sentencing
 case.
 2. Counsel should discuss with the client early in the case the sentencing alternatives
 available, and the relationship between strategy for the sentencing phase and for
 the guilt/innocence phase.
 3. Prior to the sentencing phase, counsel should discuss with the client the specific
 sentencing phase procedures of the jurisdiction and advise the client of steps being
 taken in preparation for sentencing. Counsel should discuss with the client the
 accuracy of any information known to counsel that will be presented to the
 sentencing jury and judge, and the strategy for meeting the prosecution's case.
 4. If the client will be interviewed by anyone other than people working with defense
 counsel, counsel should prepare the client for such interview(s). Counsel should
 discuss with the client the possible impact on the sentence and later potential
 proceedings (such as appeal, subsequent retrial or resentencing) of statements the
 client may give in the interviews.
 5. Counsel should consider, and discuss with the client, the possible consequences of
 having the client testify or make a statement to the sentencing entity or entities.
 6. In deciding which witnesses and evidence to prepare for presentation at the
 sentencing phase, counsel should consider the following:
 a. Witnesses familiar with and evidence relating to the client's life and
 development, from birth to the time of sentencing, who would be favorable
 to the client, explicative of the offense(s) for which the client is being
 sentenced, or would contravene evidence presented by the prosecutor;
 b. Expert witnesses to provide medical, psychological, sociological or other
 explanations for the offense(s) for which the client is being sentenced, to give
 a favorable opinion as to the client's capacity for rehabilitation, etc. and/or
 to rebut expert testimony presented by the prosecutor;
 c. Witnesses with knowledge and opinions about the lack of effectiveness of the
 death penalty itself;
 d. Witnesses drawn from the victim's family or intimates who are willing to
 speak against killing the client.

  2. Conducting Sentencing Investigation
 Commentary. The NLADA standards require two separate but related investigations,
 one for the guilt stage and one for the sentencing stage of the trial. No further detail
 is provided. In contrast, the Nebraska standards provide specific guidelines for the
 investigation. See also Attorney Performance Standards, Volume II.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.4.1 Investigation
 a. Counsel should conduct independent investigations relating to the guilt/innocence
 phase and to the penalty phase of a capital trial. Both investigations should begin
 immediately upon counsel's entry into the case and should be pursued expeditiously.

 c. The investigation for preparation of the sentencing phase should be conducted
 regardless of any initial assertion by the client that mitigation is not to be offered. This
 investigation should comprise efforts to discover all reasonably available mitigating
 evidence and evidence to rebut any aggravating evidence that may be introduced by
 the prosecutor.

 Standard 11.8.3 Preparation for the Sentencing Phase
 (a) As set out in Standard 11.4.1, preparation for the sentencing phase, in the form of
 investigation, should begin immediately upon counsel's entry into the case. Counsel
 should seek information to present to the sentencing entity or entities in mitigation or
 explanation of the offense and to rebut the prosecution's sentencing case.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases
 B. Capital Standard No. 2: Investigation
 Counsel should conduct independent investigations relating to the guilt/innocence and the
 penalty phases of a capital trial. Both investigations should begin immediately upon
 counsel's entry into the case and should be pursued expeditiously.
 The investigation for preparation of the guilt/innocence phase of the trial should be
 conducted regardless of any admission or statement by the client concerning facts
 constituting guilt.
 The investigation for the sentencing phase must be conducted regardless of any initial
 assertion by the client that mitigation is not to be offered. This investigation should
 comprise efforts to discover all mitigating evidence and evidence to rebut any aggravating
 evidence that may be introduced by the prosecutor.
 Sources of investigative information may include the following:
 1. Charging Documents
 Copies of all charging documents in the case should be obtained and examined in
 the context of the applicable statutes and precedents, to identify (inter alia):
 1.1 The elements of the charged offense(s), including the element(s) alleged to
 make the death penalty applicable;
 1.2 The defenses, ordinary and affirmative, that may be available to the
 substantive charge and to the applicability of the death penalty;
 1.3 Any issues, constitutional or otherwise, (such as statutes of limitations or
 double jeopardy) which can be raised to attack the charging documents.
 2. The Accused
 An interview of the client should be conducted within 24 hours of counsel's entry
 into the case, unless there is a good reason for counsel to postpone this interview.
 In the event there is a good reason to postpone this interview, it should be
 conducted as soon as possible after counsel's appointment. As soon as is
 appropriate, counsel should cover 2.1-2.5 below (if this is not possible during the
 initial interview, these steps should be accomplished as soon as possible
 thereafter):
 2.1 Seek information concerning the incident or events giving rise to the
 charge(s), and any improper police investigative practice or prosecutorial
 conduct which affects the client's rights;
 2.2 Explore the existence of other potential sources of information relating to
 the offense, the client's mental state, and the presence or absence of any
 aggravating factors under the applicable death penalty statute and any
 mitigating factors;
 2.3 Collect information relevant to the sentencing phase of trial including, but
 not limited to: medical history (mental and physical illness or injury,
 alcohol and drug use, birth trauma and developmental delays);
 educational history (achievement, performance and behavior, special
 educational needs including cognitive limitations and learning
 disabilities); military history (type and length of service, conduct, special
 training); employment and training history (including skills and
 performance, and barriers to employability); family and social history
 (including physical, sexual or emotional abuse); prior adult and juvenile
 record; prior correctional experience (including conduct on supervision
 and in institutions, education or training, and clinical services); and
 religious and cultural influences.
 2.4 Seek necessary releases for securing confidential records relating to any
 of the relevant histories.
 2.5 Obtain names of collateral persons or sources to verify, corroborate,
 explain and expand upon information obtained in 2.3 above.
 3. Potential Witnesses
 Counsel generally should interview potential witnesses, including:
 3.1 Eyewitnesses or other witnesses having purported knowledge of events
 surrounding the offense itself;
 3.2 Witnesses familiar with aspects of the client's life history that might affect the
 likelihood that the client committed the charged offense(s), possible
 mitigating reasons for the offense(s), possible mitigating evidence to show
 why the client should not be sentenced to death;
 3.3 Members of the victim's family.
 Counsel should attempt to conduct interviews of potential witnesses in the
 presence of a third person who will be available, if necessary, to testify as a
 defense witness at trial. Alternatively, counsel should have an investigator or
 mitigation specialist conduct the interviews.
 4. The Police and Prosecution
 Counsel should make efforts to secure information in the possession of the
 prosecution or law enforcement authorities, including police reports. Where
 necessary, counsel should pursue such efforts through formal and informal
 discovery unless a sound tactical reason exists for not doing so. Counsel should
 establish a reliable system of tracking the receipt of all information.
 5. Physical Evidence
 Counsel should, immediately upon entry into the case, make a prompt request to
 the police or investigative agency and prosecutor for preservation of all physical
 evidence, field notes, electronic recordings of police dispatch and emergency
 numbers or expert reports made in connection with the investigation, unless a
 sound tactical reason exists for refraining from doing this.
 6. The Scene
 Where possible, counsel should attempt to view the scene of the alleged offense.
 This should be done under circumstances as similar as possible to those existing at
 the time of the alleged incident (weather, time of day, and lighting conditions).
 7. Expert Assistance
 Counsel should secure the assistance of experts where it is necessary or
 appropriate for:
 a. preparation of the defense;
 b. adequate understanding of the prosecution's case;
 c. rebuttal of any portion of the prosecution's case at the guilt/innocence phase
 or the sentencing phase of the trial;
 d. presentation of mitigation.
 Experts assisting in investigation and other preparation of the defense should be
 independent and their work product should be confidential to the extent allowed
 by law. Counsel and support staff should use all available avenues including
 signed releases, subpoenas, and Freedom of Information Acts, to obtain all
 necessary information.
  3. Considering Own Sentencing Report
 Commentary. The ABA, NLADA, and Nebraska standards present identical
 recommendations for counsel's responsibilities to rebut any official sentencing report
 that is detrimental to the client and to offer a defense sponsored report. See also
 Compendium Volume II, "Standards for Attorney Performance," for additional
 considerations.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.8.4 The Official Presentence Report
 A. If an official presentence report or similar document may or will be presented to the
 court at any time, counsel should consider:
 1. The strategic implications of requesting that an optional report be prepared;
 2. The value of providing to the report preparer information favorable to the client.
 B. Counsel should review any completed report and take appropriate steps to ensure that
 improper, incorrect or misleading information that may harm the client is deleted from
 the report.
 C. Counsel should take steps to preserve and protect the client's interest regarding
 material that has been challenged by the defense as improper, inaccurate or misleading.
 D. Counsel should consider whether the client should speak with the person preparing the
 report and, if so, whether counsel should be present.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.8.4 The Official Presentence Report
 (a) If an official presentence report or similar document may or will be presented to the
 court at any time, counsel should consider:
 1. The strategic implications of requesting that an optional report be prepared;
 2. The value of providing to the report preparer information favorable to the client.
 (b) Counsel should consider whether the client should speak with the person preparing the
 report and, if so, whether counsel should be present.
 (c) Counsel should review any completed report and take appropriate steps to ensure that
 improper, incorrect or misleading information that may harm the client is deleted from
 the report.
 (d) Counsel should take steps to preserve and protect the client's interest regarding
 material that has been challenged by the defense as improper, inaccurate or misleading.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 O. Capital Standard No. 15: The Official Presentence Report
 1. If an official presentence report or similar document may or will be presented to
 the court at any time, counsel should consider:
 a. The strategic implications of requesting that an optional report be prepared;
 b. The value of providing to the report preparer information favorable to the
 client.
 2. Counsel should review any completed report and take appropriate steps to ensure
 that improper, incorrect or misleading information that may harm the client is
 deleted from the report.
 3. Counsel should take steps to preserve and protect the client's interest regarding
 material that has been challenged by the defense as improper, inaccurate or
 misleading.
 4. Counsel should consider whether the client should speak with the person
 preparing the report and, if so, whether counsel should present.
  4. Preparing for Prosecutor Arguments at Sentencing
 Commentary. The adversarial system of justice for fact finding at trial extends to the
 sentencing phase of capital case proceedings. Defense counsel are thus required
 to rebut as best they can the arguments made by the prosecution and the facts they
 rely on.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.8.5 The Prosecutor's Case at the Sentencing Phase
 A. Counsel should attempt to determine at the earliest possible time what aggravating
 factors the prosecution will rely on in seeking the death penalty and what evidence will
 be offered in support thereof (Guideline 11.3). If the jurisdiction has rules regarding
 notification of these factors, counsel should object to any non-compliance, and if such
 rules are inadequate, should consider challenging the adequacy of the rules.
 B. If counsel determines that the prosecutor plans to rely on or offer arguably improper,
 inaccurate or misleading evidence in support of the request for the death penalty,
 counsel should consider appropriate pretrial or trial strategies in response.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.8.5 The Prosecutor's Case at the Sentencing Phase
 (a) Counsel should attempt to determine at the earliest possible time what aggravating
 factors the prosecution will rely on in seeking the death penalty and what evidence will
 be offered in support thereof (Standard 11.3). If the jurisdiction has rules regarding
 notification of these factors, counsel should object to any non-compliance, and if such
 rules are inadequate, should consider challenging the adequacy of the rules.
 (b) If counsel determines that the prosecutor plans to rely on or offer arguably improper,
 inaccurate or misleading evidence in support of the request for the death penalty,
 counsel should consider appropriate pretrial or trial strategies in response.

  Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 P. Capital Standard No. 16: The Prosecutor's Case at the Sentencing Phase
 1. Counsel should attempt to determine at the earliest possible time what
 aggravating factors the prosecution will rely on in seeking the death penalty and
 what evidence will be offered in support thereof (Refer to Standard 1, above).
 2. If counsel determines that the prosecutor plans to rely on or offer arguably
 improper, inaccurate or misleading evidence in support of the request for the
 death penalty, counsel should employ appropriate pretrial or trial strategies in
 response.
  5. Considering Full Scope of Defense Arguments
 Commentary. Imposition of the death penalty requires that the sentencing body
 consider both aggravating and mitigating circumstances. The standards herein
 provide a convenient checklist, albeit not complete, of potential mitigating factors
 that can be presented to the court or jury.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.8.6 The Defense Case at the Sentencing Phase
 A. Counsel should present to the sentencing entity or entities all reasonably available
 evidence in mitigation unless there are strong strategic reasons to forgo some portion
 of such evidence.
 B. Among the topics counsel should consider presenting are:
 1. Medical history (including mental and physical illness or injury, alcohol and drug
 use, birth trauma and developmental delays);
 2. Educational history (including achievement, performance and behavior, special
 educational needs including cognitive limitations and learning disabilities) and
 opportunity or lack thereof;
 3. Military service (including length and type of service, conduct, and special
 training);
 4. Employment and training history (including skills and performance, and barriers
 to employability);
 5. Family and social history (including physical, sexual or emotional abuse,
 neighborhood surroundings and peer influence); other cultural or religious
 influence; professional intervention (by medical personnel, social workers, law
 enforcement personnel, clergy or others) or lack thereof; prior correctional
 experience (including conduct on supervision and in institutions, education or
 training, and clinical services);
 6. Rehabilitative potential of the client;
 7. Record of prior offenses (adult and juvenile), especially where there is no record,
 a short record, or a record of non-violent offenses;
 8. Expert testimony concerning any of the above and the resulting impact on the
 client, relating to the offense and to the client's potential at the time of sentencing.
 C. Counsel should consider all potential methods for offering mitigating evidence to the
 sentencing entity or entities, including witnesses, affidavits, reports (including, if
 appropriate, a defense presentence report which could include challenges to
 inaccurate, misleading or incomplete information contained in the official presentence
 report and/or offered by the prosecution, as well as information favorable to the
 client), letters and public records.
 D. Counsel may consider having the client testify or speak during the closing argument of
 the sentencing phase.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.8.6 The Defense Case at the Sentencing Phase
 (a) Counsel should present to the sentencing entity or entities all reasonably available
 evidence in mitigation unless there are strong strategic reasons to forgo some portion
 of such evidence.
 (b) Among the topics counsel should consider presenting are:
 1. Medical history (including mental and physical illness or injury, alcohol and drug
 use, birth trauma and developmental delays);
 2. Educational history (including achievement, performance and behavior), special
 educational needs (including cognitive limitations and learning disabilities) and
 opportunity or lack thereof;
 3. Military service (including length and type of service, conduct, and special
 training);
 4. Employment and training history (including skills and performance, and barriers
 to employability);
 5. Family and social history (including physical, sexual or emotional abuse,
 neighborhood surroundings and peer influence); other cultural or religious
 influence; professional intervention (by medical personnel, social workers, law
 enforcement personnel, clergy or others) or lack thereof; prior correctional
 experience (including conduct on supervision and in institutions, education or
 training, and clinical services);
 6. Rehabilitative potential of the client;
 7. Record of prior offenses (adult and juvenile), especially where there is no record,
 a short record, or a record of non-violent offenses;
 8. Expert testimony concerning any of the above and the resulting impact on the
 client, relating to the offense and to the client's potential at the time of sentencing.
 (c) Counsel should consider all potential methods for offering mitigating evidence to the
 sentencing entity or entities, including witnesses, affidavits, reports (including, if
 appropriate, a defense presentence report which could include challenges to
 inaccurate, misleading or incomplete information contained in the official presentence
 report and/or offered by the prosecution, as well as information favorable to the
 client), letters and public records.
 (d) Counsel may consider having the client testify or speak during the closing argument of
 the sentencing phase.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 Q. Capital Standard No. 17: The Defense Case at the Sentencing Phase
 1. Counsel should present to the sentencing jury and judge all reasonably available
 evidence in mitigation unless there are strong strategic reasons to forgo some
 portion of such evidence.
 2. Among the topics counsel should consider presenting are:
 a. Medical history (including mental and physical illness or injury, alcohol and
 drug use, birth trauma and developmental delays);
 b. Educational history (including achievement, performance and behavior,
 special educational needs including cognitive limitations and learning
 disabilities) and opportunity or lack thereof;
 c. Military service (including length and type of service, conduct, and special
 training);
 d. Employment and training history (including skills and performance, and
 barriers to employability);
 e. Family and social history (including physical, sexual or emotional abuse,
 neighborhood surroundings and peer influence); other cultural or religious
 influence; professional intervention (by medical personnel, social workers,
 law enforcement personnel, clergy or others) or lack thereof; prior
 correctional experience (including conduct on supervision and in institutions,
 education or training, and clinical services);
 f. Rehabilitative potential of the client;
 g. Record of prior offenses (adult and juvenile), especially where there is no
 record, a short record, or a record of non-violent offenses;
 h. Expert testimony concerning any of the above and the resulting impact on the
 client, relating to the offense and to the client's potential at the time of
 sentencing.
 3. Counsel should consider all potential methods for offering mitigating evidence to
 the sentencing entity or entities, including witnesses, affidavits, reports (including,
 if appropriate, a defense presentence report which could include challenges to
 inaccurate, misleading or incomplete information contained in the official
 presentence report and/or offered by the prosecution, as well as information
 favorable to the client), letters and public records.
 4. Counsel may consider having the client testify or speak during the closing
 argument of the sentencing phase.

  I. Attorney Performance: Postjudgment
 The following standards relating to postjudgment are included in this section:
 1. Trial counsel duties
 2. Appellate counsel duties
 3. Postconviction counsel duties
 4. Clemency counsel duties
 5. Related standards

  1. Trial Counsel Duties
 Commentary. The principle of continuity of representation ends in most jurisdictions
 once the trial is completed and sentence imposed. A new attorney will often be
 responsible for subsequent appellate proceedings. However, provision must be
 made for ensuring that the experiences of the trial attorney are not lost to the
 appellate process. These standards place the burden on the trial attorney to
 preserve the client's appeal right and to cooperate with appellate counsel.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.9.1 Duties of Trial Counsel in Postjudgment Proceedings
 A. Counsel should be familiar with all state and federal postjudgment options available to
 the client. Counsel should consider and discuss with the client the postjudgment
 procedures that will or may follow imposition of the death sentence.
 B. Counsel should take whatever action, such as filing a claim or notice of appeal, is
 necessary to preserve the client's right to postjudgment review of the conviction and
 sentence. Counsel should consider what other postjudgment action, if any, counsel
 could take to maximize the client's opportunity to seek appellate and postconviction
 relief.
 C. Trial counsel should not cease acting on the client's behalf until subsequent counsel
 has entered the case or trial counsel's representation has been formally terminated.
 D. Trial counsel should cooperate with subsequent counsel concerning information
 regarding trial-level proceedings and strategies.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.9.1 Duties of Trial Counsel in Postjudgment Proceedings
 (a) Counsel should be familiar with all state and federal postjudgment options available to
 the client. Counsel should consider and discuss with the client the postjudgment
 procedures that will or may follow imposition of the death sentence.
 (b) Counsel should take whatever action, such as filing a claim or notice of appeal, is
 necessary to preserve the client's right to postjudgment review of the conviction and
 sentence. Counsel should consider what other postjudgment action, if any, counsel
 could take to maximize the client's opportunity to seek appellate and postconviction
 relief.
 (c) Trial counsel should not cease acting on the client's behalf until subsequent counsel has
 entered the case or trial counsel's representation has been formally terminated.
 (d) Trial counsel should cooperate with subsequent counsel concerning information
 regarding trial-level proceedings and strategies.
 Nebraska Commission on Public Advocacy, Standards for Indigent
 Defense Services in Capital and Non-Capital Cases
 Standard VII. Performance Standards for Counsel in Capital Cases

 R. Capital Standard No. 18: Duties of Trial Counsel in Postjudgment Proceedings
 1. Counsel should be familiar with all state and federal postjudgment options
 available to the client. Counsel should consider and discuss with the client the
 postjudgment procedures that will or may follow imposition of the death
 sentence.
 2. Counsel should take whatever action, such as filing a claim or notice of appeal, is
 necessary to preserve the client's right to postjudgment review of the conviction
 and sentence. Counsel should consider what other postjudgment action, if any,
 counsel could take to maximize the client's opportunity to seek appellate and
 postconviction relief.
 3. Trial counsel should not cease acting on the client's behalf until subsequent
 counsel has entered the case or trial counsel's representation has been formally
 terminated.
 4. Trial counsel should cooperate with subsequent counsel concerning information
 regarding trial-level proceedings and strategies.
  2. Appellate Counsel Duties
 Commentary. See also Compendium Volume IV, "Standards for Appellate
 Representation."
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.9.2 Duties of Appellate Counsel
 A. Appellate counsel should be familiar with all state and federal appellate and
 postconviction options available to the client, and should consider how any tactical
 decision might affect later options.
 B. Appellate counsel should interview the client, and trial counsel if possible, about the
 case, including any relevant matters that do not appear in the record. Counsel should
 consider whether any potential off-record matters should have an impact on how the
 appeal is pursued, and whether an investigation of any matter is warranted.
 C. Appellate counsel should communicate with the client concerning both the substance
 and procedural status of the appeal.
 D. Appellate counsel should seek, when perfecting the appeal, to present all arguably
 meritorious issues, including challenges to any overly restrictive appellate rules.
 E. Appellate counsel should cooperate with any subsequent counsel concerning
 information about the appellate proceedings and strategies, and about information
 obtained by appellate counsel concerning earlier stages of the case.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.9.2 Duties of Appellate Counsel
 (a) Appellate counsel should be familiar with all state and federal appellate and
 postconviction options available to the client, and should consider how any tactical
 decision might affect later options.
 (b) Appellate counsel should interview the client, and trial counsel if possible, about the
 case, including any relevant matters that do not appear in the record. Counsel should
 consider whether any potential off-record matters should have an impact on how the
 appeal is pursued, and whether an investigation of any matter is warranted.
 (c) Appellate counsel should communicate with the client concerning both the substance
 and procedural status of the appeal.
 (d) Appellate counsel should seek, when perfecting the appeal, to present all arguably
 meritorious issues, including challenges to any overly restrictive appellate rules.
 (e) Appellate counsel should cooperate with any subsequent counsel concerning
 information about the appellate proceedings and strategies, and about information
 obtained by appellate counsel concerning earlier stages of the case.
  3. Postconviction Counsel Duties
 Commentary. Even after the appeals court has upheld the conviction and sentence,
 the client still has postconviction remedies in federal court and in most state courts.
 Postconviction counsel's minimum duties are spelled out by these standards.
 However, they do not say whether the state is obligated to provide counsel at public
 expense at this stage of the process.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.9.3 Duties of Postconviction Counsel
 A. Postconviction counsel should be familiar with all state and federal postconviction
 remedies available to the client.
 B. Postconviction counsel should interview the client, and previous counsel if possible,
 about the case. Counsel should consider conducting a full investigation of the case,
 relating to both the guilt/innocence and sentencing phases. Postconviction counsel
 should obtain and review a complete record of all court proceedings relevant to the
 case. With the consent of the client, postconviction counsel should obtain and review
 all prior counsel's file(s).
 C. Postconviction counsel should seek to present to the appropriate court or courts all
 arguably meritorious issues, including challenges to overly restrictive rules governing
 postconviction proceedings.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.9.3 Duties of Postconviction Counsel
 (a) Postconviction counsel should be familiar with all state and federal postconviction
 remedies available to the client.
 (b) Postconviction counsel should interview the client, and previous counsel if possible,
 about the case. Counsel should consider conducting a full investigation of the case
 relating to both the guilt/innocence and sentencing phases. Postconviction counsel
 should obtain and review a complete record of all court proceedings relevant to the
 case. With the consent of the client, postconviction counsel should obtain and review
 all prior counsels' file(s).
 (c) Postconviction counsel should seek to present to the appropriate court or courts all
 arguably meritorious issues, including challenges to overly restrictive rules governing
 postconviction proceedings.
  4. Clemency Counsel Duties
 Commentary. The last step in the process is executive clemency. Clemency is
 totally discretionary and not often granted. Nonetheless, diligent counsel should
 pursue this final avenue for reprieve from a death penalty judgment.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.9.4 Duties of Clemency Counsel
 A. Clemency counsel should be familiar with the procedures for and permissible
 substantive content of a request for clemency.
 B. Clemency counsel should interview the client, and any prior attorneys if possible, and
 conduct an investigation to discover information relevant to the clemency procedure
 applicable in the jurisdiction.
 C. Clemency counsel should take appropriate steps to ensure that clemency is sought in
 as timely and persuasive a manner as possible.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.9.4 Duties of Clemency Counsel
 (a) Clemency counsel should be familiar with the procedures for and permissible
 substantive content of a request for clemency.
 (b) Clemency counsel should interview the client and any prior attorneys if possible, and
 conduct an investigation to discover information relevant to the clemency procedure
 applicable in the jurisdiction.
 (c) Clemency counsel should take appropriate steps to ensure that clemency is sought in
 as timely and persuasive a manner as possible.
  5. Related Standards
 Commentary. The final responsibility of counsel is to seek stays of execution where
 this is possible. The standards' reference to the client's mental health is significant
 because present law does not permit execution of a defendant who is so mentally ill
 that he or she cannot appreciate the significance of what is occurring.
 ABA Guidelines for the Appointment and Performance of Counsel in Death
 Penalty Cases
 Guideline 11.9.5 Duties Common to All Postjudgment Counsel
 A. Counsel representing a capital client at any point after imposition of the death sentence
 should he familiar with the procedures by which execution dates are set and how
 notification of that date is made. Counsel should also be familiar with the procedures
 for seeking a stay of execution from all courts in which the case may be lodged when
 an execution date is set.
 B. Counsel should take immediate steps to seek a stay of execution, and to appeal from
 any denial of a stay, in any and all available courts when an execution date is set.
 C. Counsel should continually monitor the client s mental, physical and emotional
 condition to determine whether any deterioration in the client's condition warrants
 legal action.
 NLADA Standards for the Appointment and Performance of Counsel in
 Death Penalty Cases
 Standard 11.9.5 Duties Common to All Postjudgment Counsel
 (a) Counsel representing a capital client at any point after imposition of the death sentence
 should be familiar with the procedures by which execution dates are set and how
 notification of that date is made. Counsel should also be familiar with the procedures
 for seeking a stay of execution from all courts in which the case may be lodged when
 an execution date is set.
 (b) Counsel should take immediate steps to seek a stay of execution, and to appeal from
 any denial of a stay, in any and all available courts when an execution date is set.
 (c) Counsel should continually monitor the client's mental, physical and emotional
 condition to determine whether any deterioration in the client's condition warrants
 legal action.