Last substantive revision (Transmittal GR-17) January 20, 2010 

Last revised (minor technical changes) June 3, 2011

Guide to Judiciary Policy

Vol. 7: Defender Services

Pt. A: Guidelines for Administering the CJA and Related Statutes

Appx. 6A: Recommendations & Commentary Concerning the 

Cost and Quality of Defense Representation (Updated 

Spencer Report, September 2010)

Recommendations and Commentary

1. Qualifications for Appointment

Commentary on Recommendation 1

2. Consultation with Federal Defender Organizations or the Administrative Office

Commentary on Recommendation 2

3. Appointment of More Than Two Lawyers

Commentary on Recommendation 3

4. Appointment of the Federal Defender Organization (FDO)

Commentary on Recommendation 4

5. The Death Penalty Authorization Process

Commentary on Recommendation 5

6. Federal Death Penalty Resource Counsel

Commentary on Recommendation 6

7. Experts

Commentary on Recommendation 7

8. Training

Commentary on Recommendation 8

9. Case Budgeting

Commentary on Recommendation 9

10. Case Management

Commentary on Recommendation 10

11. Availability of Cost Data

Commentary on Recommendation 11

Note: Detailed recommendations on the appointment and compensation of counsel in 

federal death penalty cases were adopted by the Judicial Conference, upon 

recommendation of the Defender Services Committee, on September 15, 1998 (JCUSSEP 98, pp. 67-74). The recommendations were contained in the May 1998 report 

entitled Federal Death Penalty Cases: Recommendations Concerning the Cost and 

Quality of Defense Representation (Spencer Report). The Defender Services 

Committee approved the initial Spencer Report, including the commentary that 

accompanied the recommendations. In September 2010, following a comprehensive 
Guide to Judiciary Policy, Vol. 7A, Appx. 6A Page 2

update of the report’s contents, the Defender Services Committee endorsed revised 

commentary to the 1998 recommendations. The recommendations and the 

accompanying revised commentary are set forth in this appendix. The revised 

commentary has not been approved by the Judicial Conference; it is included in this 

appendix as it expands upon the recommendations, discusses the role of federal 

defender organizations in federal death penalty cases, and generally provides practical 

information that is useful to judges and appointed counsel in the management of a 

federal death penalty case. The entire updated 2010 report, which includes additional 

information and is entitled Update on the Cost and Quality of Defense Representation in 

Federal Death Penalty Cases, is available on the judiciary’s public website; what follows 

in this appendix is an excerpt from that report. 
 

 

 

 

 

 

 

 

VIII. RECOMMENDATIONS AND COMMENTARY89 

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 post-conviction review of federal death penalty cases, or 

distinguished prior experience in state death penalty trials, appeals, or post-conviction review 

that, in combination with co-counsel, will assure high quality representation. 

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 post-conviction 

proceedings that may follow the appeal. 

d. Special Considerations in the Appointment of Counsel in Post-Conviction Proceedings. In 

appointing post-conviction counsel in a case where the defendant is sentenced to death, courts 

should consider the attorney's experience in federal post-conviction proceedings and in capital 

post-conviction proceedings, as well as the general qualifications set forth in paragraph 1(a). 

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. 

89 Section VIII utilizes a numbering system that is different from the rest of this report in order to match the 

numbered recommendations in the original Spencer Report. 

90 
 

 

 

 

 

 

 

 

 

 

 

Commentary 

As Recommendation 1(a) indicates, the first responsibility of the court in a federal death 

penalty case is to appoint experienced, well-trained, and dedicated defense counsel who will 

provide high quality legal representation. Federal law requires the appointment of two counsel 

to represent a defendant in a federal death penalty case, of whom at least one must be “learned in 

the law applicable to capital cases.” 18 U.S.C. § 3005. Additional requirements relating to 

counsel’s experience are codified at 18 U.S.C. § 3599. Legislatures, courts, bar associations, and 

other groups that have considered the qualifications necessary for effective representation in 

death penalty proceedings have consistently demanded a higher degree of training and 

experience than that required for other representations. As provided in the Defender Services 

Program Strategic Plan, counsel in federal death penalty cases are expected to comply with 

Guidelines 1.1 and 10.2 et seq. of the American Bar Association's Guidelines for the 

Appointment and Performance of Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913 

(2003), and the Supplementary Guidelines for the Mitigation Function of Defense Teams in 

Death Penalty Cases, 36 Hofstra L. Rev 677 (2008).90 

Heightened standards are required to ensure that representation in federal death penalty 

cases is both cost-effective and commensurate with the complexity and high stakes of the 

litigation. Counsel in a federal death penalty case must not only be skilled in defending the 

charged offense, e.g., a homicide, but also must be thoroughly knowledgeable about a complex 

body of constitutional law and special procedures that do not apply in other criminal cases. They 

must be able to direct extensive and sophisticated investigations into guilt/innocence and 

90 Aimed at providing counsel services “consistent with the best practices of the legal profession,” the Defender 

Services Program Strategic Plan was endorsed by the Defender Services Committee of the United States Judicial 

Conference. See Goal 2 (Quality of Representation), Strategy 16 (Capital Representations). 

91 
 

 

 

 

 

 

 

mitigation of sentence. They must have the counseling skills to advise a client deciding between 

pleading guilty in return for a life sentence and proceeding to trial where the sentencing options 

are death or life imprisonment without the possibility of release.91 They must have 

communication skills to establish trust with clients, family members, witnesses, and others 

whose backgrounds may be culturally, racially, ethnically, linguistically, socioeconomically, and 

otherwise different from counsel’s. They must be able to work effectively as part of a defense 

team and collaboratively with counsel for codefendants. And, for post-conviction cases, counsel 

also must be familiar with the unique jurisprudence and practices applicable in habeas corpus. 

Finally, counsel must be able, notwithstanding exceptional knowledge and skill, to commit 

sufficient time and resources, taking into account the extraordinary demands of a federal death 

penalty representation. 

The standards listed in Recommendations 1(b) – (d) are designed to assist courts in 

identifying the specific types of expertise and distinguished prior experience which have been 

deemed most valuable to this demanding work in the experience of the federal courts thus far. 

They emphasize the importance of bringing to bear both death penalty expertise and experience 

in the practice of criminal defense in the federal courts. As described further in the commentary 

to Recommendation 2, the qualifications of counsel must be assessed with respect to the 

particular demands of the individual case, the stage of the litigation, and the defendant. 

91 A guilty plea negotiated at any point in the proceedings brings substantial cost savings, and such a disposition is 

always available if the sides can find agreement, even after the death penalty has been authorized. The Federal 

Death Penalty Resource Counsel Project recently estimated that plea agreements have been reached in 

approximately 25 percent of authorized federal capital prosecutions since 1988. Appointed counsel’s negotiating 

skills thus are very important. 

92 
 

 

 

 

 

 

The governing statute calls for capitally qualified counsel to be appointed “promptly,” 

18 U.S.C. § 3005. Recommendation 1(b) endorses appointment of specially qualified counsel 

“at the outset” of a case, which in some cases may mean prior to the formal filing of a charging 

document. Courts should not wait to see whether the government will seek capital prosecution 

before appointing appropriately qualified counsel and granting them the resources necessary for 

a preliminary investigation. The goals of efficiency and quality of representation are achieved 

by early appointment of learned counsel in cases where capital indictment may be sought. 

Virtually all aspects of the defense of a federal death penalty case, beginning with decisions 

made at the earliest stages of the litigation, are affected by the complexities of the penalty phase. 

Early appointment of “learned counsel” is also necessitated by the formal authorization process 

adopted by the Department of Justice to guide the Attorney General’s decision-making regarding 

whether to seek imposition of a death sentence once a death-eligible offense has been indicted. 

Integral to the authorization process are presentations to the local United States Attorney’s 

Office and Justice Department officials of the factors which would militate against a death 

sentence. See United States Attorney’s Manual § 9-10.000. A mitigation investigation therefore 

must be undertaken at the commencement of the representation. Delay in appointment of 

learned counsel risks missing this important opportunity to avoid the high cost of a capital 

prosecution. Since an early decision not to seek death is the least costly way to resolve a 

potential capital charge, a prompt preliminary mitigation investigation leading to effective 

advocacy with the local U.S. Attorney and with the Justice Department is critical both to a 

defendant’s interests and to sound fiscal management of public funds. And, since the local 

prosecutor’s recommendation most often prevails with the Attorney General, the opportunity to 

persuade the U.S. Attorney not to request capital authorization is extremely important. 

93 
 

 

 

 

 

 

 

 

 

Recommendation 1(b)’s requirement of “distinguished prior experience” contemplates 

excellence, not simply prior experience, at the relevant stage of proceedings: trial, appeal, or 

post-conviction. It is expected that a lawyer appointed as “learned counsel” for trial previously 

will have tried a capital case through the penalty phase, whether in state or in federal court, and 

will have done so with distinction. Excellence in general criminal defense will not suffice 

because the preparation of a death penalty case requires knowledge, skills, and abilities which 

even the most seasoned lawyers will not possess if they lack capital experience. And not all 

capital trial experience will qualify as “distinguished.” Consultation with federal defender 

organizations and Resource Counsel, as described in Recommendation 2 (Consultation with 

Federal Defender Organizations or the Administrative Office), can help ensure that appointed 

counsel meet this criterion.92 

Courts should appoint counsel with “distinguished prior experience” in death penalty 

trials, appeals, or post-conviction representation, even if meeting the standard requires 

appointing counsel from outside the district in which a matter arises. Appointing such qualified 

defense counsel generally produces cost efficiencies, including a higher likelihood of a non-trial 

disposition. The costs of travel and other expenses associated with bringing counsel from 

92 The term federal defender organization (FDO) is used here to refer to a Federal Public Defender Organization 

(FPDO) and a Community Defender Organization (CDO), two different organizational models that fulfill the same 

function of providing counsel for indigent criminal defendants in the federal courts pursuant to the Criminal Justice 

Act (CJA), 18 U.S.C. § 3006A. A Federal Public Defender Organization is a federal office, headed by a Federal 

Public Defender who is selected by the Circuit Court of Appeals. The attorneys and other staff are employees of the 

federal judiciary. A Community Defender Organization is a not-for-profit corporation governed by a board of 

directors and led by an executive director. Both types of organization are funded and administered by the federal 

judiciary. Among the 94 judicial districts, 90 are served by an FDO. 

The term “Resource Counsel” refers to the death penalty experts who serve in the Federal Death Penalty Resource 

Counsel Project (trial level), the Federal Capital Appellate Resource Counsel Project (appellate level), and the 

Federal Capital Habeas Project (post-conviction level). These groups are referred to collectively as “Resource 

Counsel” or “the Resource Counsel Projects.” The work of the three Resource Counsel Projects and the National 

Mitigation Coordinator is described in the commentary accompanying Recommendation 2 (Consultation with 

Federal Defender Organizations or the Administrative Office) and Recommendation 6 (Federal Death Penalty 

Resource Counsel). 

94 
 

 

 

 

 

 

 

 

another jurisdiction can be minimized with careful planning by counsel and the court. With 

appropriate forethought, investigations, client counseling, court appearances, and other 

obligations can be coordinated to maximize the efficient use of counsel’s time and ensure costeffectiveness. In the institutional defender context, when it is helpful and desirable, attorney 

resources can be shared between defender offices pursuant to an established protocol. 

Recommendation 1(c) provides that counsel on appeal should include “at least one 

attorney who did not represent the appellant at trial.” Like capital trial representation, capital 

appellate representation should be tailored to the individual requirements of the case, stage of 

proceedings, and client. There should be no presumption of continuity from trial to appeal in 

federal death penalty cases, and courts frequently relieve and replace both trial counsel. Capital 

appellate work is a specialty, and a lawyer is rarely a specialist in both trial and appellate 

representation.93 Even if trial counsel does possess “distinguished prior experience” in appellate 

as well as trial representation, there is value in bringing fresh perspective to issues that have been 

litigated below. In addition, a new lawyer may, if appropriately experienced, be able to provide 

continued representation following the appeal in any post-conviction proceedings, which a trial 

lawyer could not, due to a conflict of interest.94 This would afford continuity of representation at 

that stage and, presumably, cost savings. To address particular case-specific demands, such as 

an especially complex trial record or managing the needs of a defendant with significant mental 

health issues, some courts have found it helpful and cost-efficient to appoint one of the 

93 See Good Practices for Panel Attorney Programs in the U.S. Courts of Appeals, Vera Institute of Justice (2006) 

(the Defender Services Committee endorsed the report’s recommendation that circuits adopt a flexible approach 

rather than requiring CJA trial counsel to continue representing the defendant through the appeal, and encouraging 

deference to trial counsel regarding whether continued representation is in the client’s best interests and consistent 

with counsel’s professional skills and obligations). 

http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/Publications/VERASuggestedGoodPractices.aspx. 

94 Where a claim of ineffective assistance of counsel on appeal is possible, continued representation would not be 

appropriate. 

95 
 

 

defendant’s trial attorneys as third counsel on appeal, to provide limited and/or temporary 

assistance as required. 

Recommendation 1(d) highlights the need for specialized expertise in post-conviction 

representation. Like trial and appellate counsel, post-conviction lawyers for federal death 

penalty cases should be selected based on an individualized assessment of the requirements of 

the case, the stage of the litigation, and the defendant. Habeas corpus practice is a complex 

subspecialty of capital representation. A lawyer qualified to be learned counsel in a federal 

capital trial or on appeal will not necessarily have such expertise. Challenges include an 

accelerated timeline, a tangle of specialized procedural law applicable to capital proceedings 

pursuant to 28 U.S.C. § 2255, and an obligation that includes a full investigation of both phases 

of the trial to identify any possible constitutional infirmities. This underscores the importance of 

appointing counsel with the experience and dedication – as well as the time and resources – to 

devote to this intensely demanding work. The one-year statute of limitations makes it especially 

important that counsel be appointed promptly. Federal Capital Habeas Resource Counsel 

recommend that appointment take place prior to the denial of certiorari by the Supreme Court. 

As indicated in Recommendation 4 (Appointment of the Federal Defender Organization), a 

number of federal defender organizations have staff attorneys who specialize in post-conviction 

capital litigation. Where they possess the requisite expertise, appointment of federal defender 

organizations should be considered in capital 2255 cases. For capital habeas corpus cases 

brought pursuant to 28 U.S.C. § 2254, involving state death sentenced prisoners, representation 

96 
 

 

 

by an institutional defender organization has been endorsed by the Committee on Defender 

Services as offering cost and other efficiencies together with high quality representation.95 

Recommendation 1(e) recognizes that appropriate rates of compensation are essential to 

maintaining the quality of representation required in a federal capital case. The time demands of 

these cases are such that a single federal death penalty representation is likely to become, for a 

substantial period of time, counsel’s exclusive or nearly exclusive professional commitment. It 

is therefore necessary that the hourly rate of compensation be fair in relation to the costs 

associated with maintaining a criminal practice. The rate ($178 as of January 1, 2010) should be 

reviewed at least every three years to ensure that it remains sufficient in light of inflation and 

other factors. (See 18 U.S.C. § 3006A(d)(1) and 18 U.S.C. § 3599(g)(1).) 

95 Report on Death Penalty Representation, prepared by the Committee on Defender Services Subcommittee on 

Death Penalty Representation, approved by the Judicial Conference (JCUS-SEP 95, pp. 69, 78-81). 

97 
 

 

 

 

 

 

 

 

 

2. Consultation with Federal Defender Organizations or the Administrative Office 

a. Notification of Statutory Obligation to Consult. The Administrative Office of the U.S. Courts 

(Administrative Office) and federal defender organizations should take appropriate action to 

ensure that their availability to provide statutorily mandated consultation regarding the 

appointment of counsel in every federal death penalty case is well known to the courts. (See 18 

U.S.C. § 3005.) 

b. Consultation by Courts in Selecting Counsel. In each case involving an offense punishable by 

death, courts should, as required by 18 U.S.C. § 3005, consider the recommendation of the 

district's Federal Public Defender (FPD) (unless the defender organization has a conflict) about 

the lawyers to be appointed. In districts not served by a Federal Public Defender Organization, 

18 U.S.C. § 3005 requires consultation with the Administrative Office. Although not required to 

do so by statute, courts served by a Community Defender Organization (CDO) should seek the 

advice of that office. 

c. Consultation by Federal Defender Organizations and the Administrative Office in 

Recommending Counsel. In discharging their responsibility to recommend defense counsel, 

FDOs and the Administrative Office should consult with Federal Death Penalty Resource 

Counsel in order to identify attorneys who are well qualified, by virtue of their prior defense 

experience, training and commitment, to serve as lead and second counsel. 

Commentary 

Courts are required pursuant to 18 U.S.C. § 3005 to consider the recommendation of their 

federal defender organization or the Administrative Office regarding the appointment of both 

counsel in each federal death penalty case.96 Most courts are aware of the statute and policy and 

do consult about their appointments, though a small number still do not. The Administrative 

Office should continue to ensure that all courts are aware of the importance and availability of 

consultation for all federal capital appointments, and should make specific outreach to courts that 

for any reason have not consulted with federal defenders or Resource Counsel. 

96 The specific language of the statute requires the court to “consider the recommendation of the Federal Public 

Defender organization, or, if no such organization exists in the district, of the Administrative Office....” 

18 U.S.C. § 3005. Emphasis added. There is no indication in the legislative history that this reference was intended 

to exclude Community Defender Organizations, and the most reasonable interpretation is that this was inadvertent 

and that Congress’s intention was to include all federal defender organizations. As a matter of policy, the Judicial 

Conference recommends that consultation be made with the district’s FDO, regardless of whether it is organized as 

an FPD or a CDO. See Recommendation 1, Footnote 94. 

98 
 

 

 

 

 

 

 

 

Recommendation 2(b) emphasizes that consultation should be made for “each case 

involving an offense punishable by death.” It is not satisfied where a court selects counsel from 

a pre-existing list, because recommendations concerning appointment of counsel are best 

obtained on an individualized, case-by-case basis. The relative infrequency of federal death 

penalty appointments, and the typically swift response which any court requesting a 

recommendation can expect, makes lists or “panels” of “capitally-qualified” attorneys both 

unnecessary and, in some respects, impractical.97 Currently, within a short time after receipt of a 

request, the federal defender or Administrative Office (through Resource Counsel, as described 

below and in Recommendation 6) provides the court with the names of attorneys who not only 

are qualified to serve as counsel but who also have been contacted and indicated their 

willingness to serve in the particular case.98 These individualized recommendations help to 

ensure that counsel are well-suited to the demands of a particular case and compatible with one 

another and the defendant. Whether at trial, on appeal, or in post-conviction, the federal 

defender and Resource Counsel are likely to have access to information that the court lacks. 

That information includes factors relating to the defendant or to counsel who are candidates for 

appointment. Consideration of these factors is essential to establishing a defense team that 

functions effectively. Case-specific consultation is also required by Judicial Conference policy 

(see Guide, §§ 620.30(a) and (b), explaining the 18 U.S.C. § 3005 consultation requirement and 

97 The distinction between being qualified to serve and willing to do so is significant. Many defense counsel would 

not be willing to accept appointment to more than one federal death penalty case at a time. Furthermore, since 

accepting a federal death penalty appointment requires a substantial time commitment which may ultimately cause 

the attorney to become entirely unavailable for any other fee-generating work, appointment in such a case is not 

lightly undertaken. 

98 In some instances, in fact, it is the federal defender or Resource Counsel who first alerts the court to the need for 

an appointment. For example, prior to an indictment issuing, the U.S. Attorney’s Office may inform the defender or 

Resource Counsel of an imminent capital prosecution in which a defendant will need capitally qualified counsel, or 

the defender or Resource Counsel may become aware of an investigation and the need for counsel through other 

means. 

99 
 

 

 

 

 

 

 

 

 

suggesting that in developing a recommendation, consideration be given to “the facts and 

circumstances of the case.”) 

Recommendation 2(c) recognizes the role of Resource Counsel in the consultation 

process. When this Recommendation was first made, there was a single Federal Death Penalty 

Resource Counsel Project charged with responsibility for assisting in federal death penalty 

proceedings at all stages of litigation: trial, appeal, and post-conviction. Those functions have 

now been distributed among three projects, each of which addresses a different stage of 

litigation: the Federal Death Penalty Resource Counsel Project (trial), the Federal Capital 

Appellate Resource Counsel Project, and the Federal Capital Habeas Project.99 Referred to 

collectively here as “Resource Counsel” or “the Resource Counsel Projects,” these lawyers are 

death penalty experts. They are knowledgeable about and maintain effective communication 

with defense counsel nationwide, and their ability to promptly match attorneys with cases is of 

great value to the judiciary. 

The appropriate Resource Counsel Project should be consulted about appointment of 

counsel in every trial, appellate, and post-conviction case, whether by the court, the federal 

defender, or both. In addition, prior to recommending counsel for appointment in a federal 

capital case, federal defenders should advise potential counsel that any attorney appointed is 

expected to consult regularly with Resource Counsel. 100 Federal defenders and Resource 

Counsel should also ensure, prior to making a recommendation to a court, that prospective 

defense counsel are able to dedicate the time required to the new capital case. 

99 The National Mitigation Coordinator also provides assistance in federal death penalty cases, as described in 

Recommendation 6 (Federal Death Penalty Resource Counsel). 

100 See Defender Services Strategic Plan, Goal 2 (Quality of Representation), Strategy 17 (Capital Representations). 

100 
 

Together, Resource Counsel and federal defenders have been instrumental in providing 

high quality representation to federal defendants from trial through post-conviction proceedings. 

Recommendation 2(c) recognizes the value of Resource Counsel and urges federal defenders and 

the Administrative Office to continue to work closely with them. 

101 
 

 

 

 

 

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. 

Commentary

The norm in federal death penalty cases is the appointment of two counsel per defendant. 

Courts contemplating the appointment of a third counsel for trial, appeal or post-conviction 

representation might consider contacting the Administrative Office, the federal defender 

organization or the appropriate Resource Counsel Project (see Recommendation 6) for 

information and advice about whether circumstances warrant such appointment. 

Notwithstanding this suggested limit on the number of attorneys charged with responsibility for 

the defense in its entirety, courts are encouraged to permit appointed counsel to employ 

additional attorneys to perform more limited services where to do so would be cost-effective or 

otherwise enhance the effective use of resources. For example, in many federal death penalty 

cases, the prosecution provides to defense counsel an extensive amount of discovery material 

which must be reviewed for relevance and organized for use by the defense. Allowing appointed 

counsel to obtain legal assistance from an associate at his or her firm or from another 

appropriately qualified lawyer may prove economical because the work is performed at a lower 

hourly rate, or this assistance may be a necessity in light of the volume and nature of the work or 

court deadlines. See Guide, §§ 620.10.10 and 230.23.10(f). 

102 
 

 

 

 

 

 

4. Appointment of the Federal Defender Organization (FDO) 

a. FDO as Lead Counsel. Courts should consider appointing the district's FDO as lead counsel in 

a federal death penalty case only if the following conditions are present: 

i. the FDO has one or more lawyers with experience in the trial and/or appeal of capital 

cases who are qualified to serve as "learned counsel"; and 

ii. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and 

iii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

b. FDO as Second Counsel.Courts should consider appointing the district's FDO as second 

counsel in a federal death penalty case only if the following conditions are present: 

i. the FDO has sufficient resources so that workload can be adjusted without unduly 

disrupting the operation of the office, and the lawyer(s) assigned to the death penalty case 

can devote adequate time to its defense, recognizing that the case may require all of their 

available time; and

ii. the FDO has or is likely to obtain sufficient funds to provide for the expert, 

investigative and other services reasonably believed to be necessary for the defense of the 

death penalty case. 

Commentary 

Effective capital representation requires a team of many players, and the institutional 

strength of a federal defender organization lends itself to good teamwork. On the other hand, a 

defender organization can meet the demands of a capital case only if the assigned personnel 

possess the requisite qualifications and have available to them the time and other resources the 

case requires. Thus, courts are encouraged to appoint an FDO as either lead or second counsel in 

a capital case, but only after consideration of the factors identified in this Recommendation and 

consultation with the federal defender. 

103 
 

 

 

 

 

 

 

Recommendations 4(a) and (b) acknowledge that capital cases inevitably and seriously 

disrupt the normal functioning of an office. To undertake too much death penalty litigation 

would seriously threaten the effective performance of a defender organization’s responsibility to 

provide representation to a substantial number of financially eligible criminal defendants in its 

district each year. Therefore, a federal defender organization should not be required to accept 

more than one federal death penalty trial representation at a time unless the head of the 

organization believes such an arrangement is appropriate. In addition, the head of an FDO 

accepting a capital appointment must be prepared to seek additional resources as necessary and 

to shift responsibilities among staff so that those entrusted with capital cases have sufficient time 

for that work and other demands upon them are limited.101 Regardless of what level of capital 

experience the federal defender has, all FDOs with federal capital cases should maintain close 

contact and collaborate with the appropriate Resource Counsel Project.102 

In addition to serving as counsel, many federal defender organizations play a valuable 

administrative and leadership role with respect to death penalty representation in their districts, 

for example, by sponsoring training, facilitating relationships with Resource Counsel, and 

disseminating information to panel attorneys. This important work should continue to be 

supported and encouraged by the Administrative Office. Also, federal defender organizations 

should identify and share best practices they have developed in providing capital representation 

and in supporting the work of other capital lawyers. 

101 These warnings about avoiding over-commitment should be understood to extend to panel attorneys accepting 

appointment in capital cases as well. As noted in the commentary accompanying Recommendation 2 (Consultation 

with Federal Defender Organizations or the Administrative Office), in making recommendations and appointments, 

courts, federal defenders and Resource Counsel should ensure that prospective defense counsel are sufficiently free 

of other obligations to dedicate the time required to the new capital case. 

102 See Defender Services Strategic Plan, Goal 2 (Quality of Representation), Strategy 16 (Capital Representations). 

104 
 

 

 

Courts are encouraged to consider appointing federal defender organizations with the 

requisite expertise to represent federal death-sentenced prisoners in appellate and post-conviction 

proceedings, as well as at trial. There are particular benefits to the appointment of wellresourced offices in capital 2255 proceedings, which require digesting and briefing large 

amounts of legal and factual material and conducting a thorough investigation within a very 

compressed timetable. Post-conviction representation makes demands that can be efficiently met 

by institutional representation.103 In addition, it has proved much harder to find qualified, 

available attorneys for 2255 matters than for capital trial cases. 

Over the past several years, a number of federal defender organizations have accepted 

capital appeals and 2255 representations, most of them having acquired the necessary expertise 

through their representation of state death-sentenced prisoners pursuant to 28 U.S.C. 

§ 2254. The Administrative Office should evaluate the need for counsel in capital 2255 

proceedings, continue to support federal defender organizations in meeting the need, and 

consider whether to establish additional capacity for institutional representation in capital cases 

in the defender program. 

103 Report on Death Penalty Representation, prepared by the Committee on Defender Services Subcommittee on 

Death Penalty Representation, approved by the Judicial Conference (JCUS-SEP 95). 

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5. The Death Penalty Authorization Process 

a. Streamlining the Authorization Process. The Department of Justice should consider adopting a 

"fast track" review of cases involving death-eligible defendants where there is a high probability 

that the death penalty will not be sought. 

b. Court Monitoring of the Authorization Process. Courts should exercise their supervisory 

powers to ensure that the death penalty authorization process proceeds expeditiously. 

Commentary 

A decision not to seek the death penalty against a defendant has large and immediate 

cost-saving consequences. The sooner that decision is made, the larger the savings. Since the 

death penalty ultimately is sought against only a small number of the defendants charged with 

death-eligible offenses, the process for identifying those defendants should be expeditious in 

order to preserve funding and minimize the unnecessary expenditure of resources. The current 

process, however, is not expeditious; rather, even in cases in which authorization for capital 

prosecution is viewed as unlikely by both the prosecution and the defense, the process is lengthy 

and seemingly inefficient, involving multiple levels of review, and results in unnecessary costs 

being incurred. The process also limits the availability of lawyers qualified to serve as “learned 

counsel” for other capital appointments. Recommendations 5(a) and (b) call upon the 

Department of Justice and the judiciary to maximize cost-savings by increasing the efficiency of 

the authorization process. The Department of Justice can do this by evaluating and streamlining 

its procedures. Judges can do this by establishing reasonable deadlines and maintaining 

oversight during the pre-authorization stage of the litigation.104 Courts should ensure, however, 

that whatever decision-making timetables are imposed are sufficient to allow for meaningful preauthorization advocacy by counsel for the defendant. Where authorization to seek the death 

104 Section 670 of the Guide sets forth Judicial Conference policy on “scheduling of federal death penalty case 

authorization to control costs.”

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penalty is significantly likely, the prosecution and defense should be given every opportunity to 

explore the reasons for not authorizing or for negotiating an early disposition of the case. 

In addition to acting in their individual capacities to pursue efficiency goals, the 

Department of Justice and the judiciary should seek opportunities to communicate with one 

another about the impact of federal death penalty policies on the efficient administration of 

justice. Given the enormous resource demands and cost implications, it would be wise for the 

judiciary, the Department of Justice, and the Administrative Office to communicate and work 

together at the highest levels. 

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6. Federal Death Penalty Resource Counsel 

a.	 Information from Resource Counsel. In all federal death penalty cases, defense counsel 

should obtain the services of Federal Death Penalty Resource Counsel in order to obtain the 

benefit of model pleadings and other information that will save time, conserve resources and 

enhance representation. The judiciary should allocate resources sufficient to permit the full 

value of these services to be provided in every case. 

b.	 Technology and Information Sharing. The Administrative Office should explore the use of 

computer-based technology to facilitate the efficient and cost-effective sharing of 

information between Resource Counsel and defense counsel in federal death penalty cases. 

Commentary 

When Recommendation 6 was issued in 1998, there was only one Federal Death Penalty 

Resource Counsel Project, and it offered support for all cases, whether at trial, on appeal, or in 

post-conviction. As Recommendation 2 (Consultation with Federal Defender Organizations or 

the Administrative Office) describes, there is now a separate Resource Counsel Project dedicated 

to each stage of litigation. The trial-level Federal Death Penalty Resource Counsel Project has 

been joined by the Federal Capital Appellate Resource Counsel Project and the Federal Capital 

Habeas Project. There is also a National Mitigation Coordinator who collaborates with Resource 

Counsel and supports work in all death penalty matters that arise in the federal courts.105 

Recommendation 6 and other references to Resource Counsel in these Recommendations and 

Commentary apply to each of the Resource Counsel Projects. 

The Resource Counsel Projects serve CJA counsel, federal defenders, and the courts by 

recommending counsel for every case at trial, on appeal, and in post-conviction, and by 

providing numerous other services, including case consultation, training, and assistance with 

case budgeting. Trial-level Resource Counsel are assigned to each defense team at the outset of 

every death-eligible case, and continue to support the efforts of appointed counsel through the 

105 The National Mitigation Coordinator also works with the Habeas Assistance and Training Counsel Project (HAT) 

in connection with capital post-conviction representation in the federal courts pursuant to 28 U.S.C. §2254. 

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conclusion of trial. Appellate and post-conviction Resource Counsel assume responsibility at the 

appropriate procedural junctures, and offer consultation and assistance throughout those stages of 

the case. The National Mitigation Coordinator provides information, referrals, and case-specific 

consultation, and is extensively involved in the planning and delivery of training. The four 

Projects work together on issues of common concern, and support one another in conducting 

training and disseminating information to counsel. They also provide consultation and advice to 

the Administrative Office and to courts. 

Recommendation 6(a) urges both the judiciary and counsel to maximize the benefits of 

Resource Counsel’s services. Together, the Resource Counsel Projects are essential to the 

delivery of high quality, cost-effective representation. Their work should continue to be 

facilitated by the Administrative Office, and counsel in all federal death penalty cases are 

encouraged to maintain regular contact with Resource Counsel. See Defender Services Strategic 

Plan, Goal 2 (Quality of Counsel), Strategy 16 (Capital Representations). In addition, federal 

defender organizations should advise potential appointed counsel that they are expected to 

consult with Resource Counsel if they accept a capital representation. Id., Strategy 17 (Capital 

Representations). The Department of Justice provides centralized support to prosecutors 

nationwide at all stages of federal death penalty proceedings. Although the Resource Counsel 

Projects cannot match that capacity, the judiciary should allocate resources sufficient to permit 

the full value of their services to be provided in every case. 

Recommendation 6(b) recognizes the critical role of technology in sharing information. 

The website maintained by Resource Counsel (www.capdefnet.org) recently has been upgraded. 

It is a valuable resource, enhancing quality of representation in a cost-efficient manner, and it is 

relied upon extensively by appointed counsel nationwide. The Administrative Office should 

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support the ongoing development of this cost-effective means of assisting appointed counsel in 

federal death penalty cases. The database of case related information maintained by Resource 

Counsel is also an essential resource and, similarly, should receive ongoing support as indicated 

in the Commentary to Recommendation 11 (Availability of Cost Data). 

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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. 

b. Negotiating Reduced Rates. Counsel should seek to contain costs by negotiating reduced 

hourly rates and/or total fees with experts and other service providers. 

c. Directory of Experts. A directory of experts willing to provide the assistance most frequently 

needed in federal death penalty cases, and their hourly rates of billing, should be developed and 

made available to counsel. 

Commentary 

Penalty phase investigators or “mitigation specialists” are individuals trained and 

experienced in the development and presentation of evidence for the penalty phase of a capital 

case. As indicated in the 2003 ABA Guidelines,106 this function is an essential component of 

effective capital defense representation; however, mitigation specialists are in short supply and in 

many cases they are not available locally. Recommendation 7(a) suggests ameliorating this 

problem by employing and training persons for this work in federal defender organizations. In 

2004 the Defender Services Committee authorized a position for a National Mitigation 

Coordinator in a federal defender office to assist in expanding the availability and quality of 

mitigation work in death penalty cases in the federal courts. In addition to leveraging his own 

significant knowledge and skills through case consultations, the National Mitigation Coordinator 

has enhanced defense representation and contributed to cost containment efforts by recruiting 

more mitigation specialists to work on federal capital cases, matching mitigation specialists with 

106 American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 

31 Hofstra L. Rev. 913 (2003). See also Supplementary Guidelines for the Mitigation Function of Defense Teams in 

Death Penalty Cases, 36 Hofstra L. Rev. 677 (2008) for an elaboration on the mitigation function, including the role 

of mitigation specialists. 

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counsel, and providing expanded training opportunities both for defender staff and for private 

mitigation specialists who are authorized to work on federal cases. This training enhances the 

skills and availability of such professionals. 

In addition, because of the cost containment potential, Recommendation 7(a) suggests 

that salaried federal defender employees might work not only on cases in which their office is 

appointed, but also, in appropriate instances, on other cases. Procedures that will facilitate 

lending such non-attorney staff members between defender offices have been developed by the 

Administrative Office. 

Recommendation 7(b) encourages counsel to negotiate a reduced hourly rate for expert 

services whenever possible. Private experts must be employed in death penalty cases, but the 

cost of their services can and should be contained. When asked to provide services for the 

defense of a CJA-eligible criminal defendant, many experts are willing to accept fees lower than 

their customary hourly rates for private clients. The types of experts employed in capital cases 

can be highly specialized, however, and sometimes a particular expert is required and it is not 

possible to negotiate a reduced rate. It should be noted that the government, too, employs private 

experts, often at high hourly rates, a factor the courts could consider in assessing the 

reasonableness of proposed defense expenditures. 

With respect to Recommendation 7(c), it should be noted that while maintaining formal 

lists of experts has proved to be problematic, substantial progress has been made in collecting 

and sharing appropriate information of this nature with defense counsel and courts, particularly 

since 2004 when the National Mitigation Coordinator position was established. Resource 

Counsel, federal defenders, and the National Mitigation Coordinator have knowledge of a wide 

range of expert service providers throughout the country and they are available to assist in 

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matching cases with experts and evaluating costs during the case-budgeting process and at any 

other stage of litigation. 

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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. 

Commentary

Specialized death penalty training programs are relied upon by even the most highly 

experienced counsel to update and refine their skills and knowledge. Death penalty law is not 

only complex but also is rapidly evolving, and counsel are obligated to keep pace with 

developments throughout the federal courts. Continuing education in the latest forensic science 

developments is another responsibility of capital lawyers. Resource Counsel, the National 

Mitigation Coordinator, and federal defenders, with the support of the Administrative Office, 

have substantially increased training opportunities over the past several years. Counsel 

appointed in federal capital cases may attend a variety of specialized trial, appellate, and postconviction programs organized or supported by each of the Resource Counsel Projects. 

Defender offices sponsor local and regional training as well. Programs focusing on forensic 

science, mitigation investigation, and victim contact offer further opportunities for skill-building 

and information sharing. Financial assistance to facilitate attendance at training programs and 

other logistical support are made available through the Training Branch of the Administrative 

Office’s Office of Defender Services. These opportunities for counsel to benefit from the 

research and experience of others and share information and ideas are important and costeffective. Their quality and utility has been universally praised by defense counsel. The 

Administrative Office should ensure that training opportunities continue to expand to meet the 

needs of capital defense teams. 

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9. Case Budgeting 

a. Consultation with Prosecution.Upon learning that a defendant is charged with an offense 

punishable by death, courts should promptly consult with the prosecution to determine the 

likelihood that the death penalty will be sought in the case and to find out when that decision will 

be made. 

b. Prior to Death Penalty Authorization.Ordinarily, the court should require defense counsel to 

submit a litigation budget encompassing all services (counsel, expert, investigative and other) 

likely to be required through the time that the Department of Justice (DOJ) determines whether 

or not to authorize the death penalty. 

c. After Death Penalty Authorization. As soon as practicable after the death penalty has been 

authorized by DOJ, defense counsel should be required to submit a further budget for services 

likely to be needed through the trial of the guilt and penalty phases of the case. In its discretion, 

the court may determine that defense counsel should prepare budgets for shorter intervals of 

time. 

d. Advice from Administrative Office and Resource Counsel. In preparing and reviewing case 

budgets, defense counsel and the courts should seek advice from the Administrative Office and 

Federal Death Penalty Resource Counsel, as may be appropriate. 

e. Confidentiality of Case Budgets. Case budgets should be submitted ex parteand should be 

filed and maintained under seal. 

f. Modification of Approved Budget.An approved budget should guide counsel's use of time and 

resources by indicating the services for which compensation is authorized. Case budgets should 

be re-evaluated when justified by changed or unexpected circumstances, and should be modified 

by the court where good cause is shown. 

g. Payment of Interim Vouchers.Courts should require counsel to submit vouchers on a monthly 

basis, and should promptly review, certify and process those vouchers for payment. 

h. Budgets In Excess of $250,000. If the total amount proposed by defense counsel to be 

budgeted for a case exceeds $250,000, the court should, prior to approval, submit such budget 

for review and recommendation to the Administrative Office. 

i. Death Penalty Not Authorized. As soon as practicable after DOJ declines to authorize the death 

penalty, the court should review the number of appointed counsel and the hourly rate of 

compensation needed for the duration of the proceeding pursuant to the Guide, § 630.30. 

j. Judicial Conference Guidelines. The Judicial Conference should promulgate guidelines on case 

budgeting for use by the courts and counsel. 

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k. Judicial Training for Death Penalty Cases. The Federal Judicial Center should work in 

cooperation with the Administrative Office to provide training for judges in the management of 

federal death penalty cases and, in particular, in the review of case budgets. 

Commentary 

When Recommendation 9 was issued in 1998, case budgeting was new to the courts. It is 

now well established, representing the norm in federal death penalty cases. Judicial Conference 

policy with respect to capital case budgeting is set forth in Section 640 of the Guide, and district 

and appellate courts in various parts of the country are experimenting with different approaches 

to case budgeting. Reports on their methods and progress will be forthcoming as those initiatives 

are evaluated. In the meantime, certain things are clear. Drafting a case budget requires the 

lawyer to incorporate cost considerations into litigation planning and encourages the use of less 

expensive means to achieve the desired end. Submission and review of a budget assists the court 

in monitoring the overall cost of representation in the case, and determining the reasonableness 

of costs. Both judges and counsel consistently describe the budgeting process as valuable. They 

also emphasize the importance of a focus on the “big picture” rather than “nickels and dimes,” 

and of an understanding that case budgeting is about ensuring planned, thoughtful, and 

responsible spending as opposed to simply cutting costs. Resource Counsel are available to 

assist courts and counsel with drafting and evaluating case budgets. 

Because of the unpredictability of pretrial litigation, it is impractical to require counsel to 

budget for an entire case from start to finish. At a minimum, the budgeting process should occur 

in two stages, as suggested in Recommendations 9(b) and (c). The first stage begins when the 

lawyer is sufficiently familiar with the case to be able to present a budget reasonably related to 

the anticipated factual and legal issues in the case and continues until the Department of Justice 

makes its decision as to whether it will seek the death penalty. Prior to this first-stage budget, in 

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some districts the court orders a “starter budget” approving funds for an initial allotment of 

counsel’s time as well as service providers such as an investigator, paralegal, mitigation 

specialist, and associate counsel. This allows counsel to begin work without delay, and a formal 

first-stage budget is submitted after counsel has had an opportunity to assess the needs of the 

case more thoroughly. As indicated in the Commentary to Recommendation 1(b) (Qualifications 

of Counsel), courts should not defer appointing “learned counsel” and authorizing an appropriate 

investigation at this stage. As recognized in Section 640.40 of the Guide, it will be necessary for 

counsel to begin work immediately, so courts should be prepared to authorize funds for this 

purpose, even if a case budget has not yet been submitted or approved. 

If a death penalty notice is filed, a further budget should be prepared. The court may 

require a single budget from authorization through trial, though it may be more practical to 

develop a series of budgets covering shorter increments of time. If the prosecution will not seek 

the death penalty, Recommendation 9(i) calls for the court to review the case in accordance with 

the Guide, § 630.30, to determine whether the number or compensation of counsel should be 

reduced. 

Consistent with the Criminal Justice Act, 18 U.S.C. § 3006A, Recommendation 9(e) calls 

for case budgets to be submitted ex parte and maintained under seal. Guide, § 640.20(b). A case 

budget requires defense counsel to develop an overall litigation plan for the case. Consequently, 

it contains privileged information and is an extremely sensitive document. 

Recommendation 9(g) encourages prompt and efficient consideration and payment of 

interim vouchers in capital cases. Delay in approving payments to experts or counsel may 

prevent the defense from moving forward to develop its case, negatively affect the quality of 

representation, and/or delay expeditious and cost-effective disposition of the matter. 

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Case budgeting in post-conviction cases should proceed in much the same way as trial 

case budgeting. Costs can be significant because counsel is obligated to thoroughly and 

independently investigate both phases of the trial to determine whether there are any potential 

constitutional infirmities. Guideline 10.7 (Investigation), American Bar Association, Guidelines 

for the Appointment and Performance of Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 

913, 1015 (2003). A capital post-conviction budget should include the costs of counsel, 

investigators, and experts. The budgeting process should be completed quickly in light of the 

one-year statute of limitations for filing a motion pursuant to 28 U.S.C. § 2255. 

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10. Case Management 

a. Non-Lawyer Staff. Where it will be cost-effective, courts should consider authorizing payment 

for services to assist counsel in organizing and analyzing documents and other case materials. 

b. Multi-defendant Cases. 

i. Early Decision Regarding Severance.Courts should consider making an early decision 

on severance of non-capital from capital codefendants. 

ii. Regularly Scheduled Status Hearings.Status hearings should be held frequently, and a 

schedule for such hearings should be agreed upon in advance by all parties and the court. 

iii. "Coordinating Counsel. " In a multi-defendant case (in particular a multi-defendant 

case in which more than one individual is eligible for the death penalty), and with the 

consent of co-counsel, courts should consider designating counsel for one defendant as 

"coordinating counsel." 

iv. Shared Resources.Counsel for codefendants should be encouraged to share resources 

to the extent that doing so does not impinge on confidentiality protections or pose an 

unnecessary risk of creating a conflict of interest. 

v. Voucher Review. In large multi-defendant cases, after approving a case budget, the 

court should consider assigning a magistrate judge to review individual vouchers. The 

court should meet with defense counsel at regular intervals to review spending in light of 

the case budget and to identify and discuss future needs. 

Commentary 

Recommendation 10(a) recognizes that the large volume of discovery materials and 

pleadings associated with a federal death penalty case may make it cost-effective for courts to 

authorize (and appointed counsel to employ) the services of law clerks, paralegals, secretaries, or 

others to perform organizational work which would otherwise have to be performed by counsel 

at a higher hourly rate. (See also Commentary accompanying Recommendation 3 (Appointment 

of More Than Two Lawyers), endorsing the practice of authorizing counsel to obtain the services 

of additional attorneys under appropriate circumstances.) Judicial Conference policy provides 

that, in general, appointed counsel may not be reimbursed for expenses deemed part of their 

office overhead (Guide, § 230.66.10); however, unusual expenses of this nature may be 

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compensated (Guide, § 320.70.30). The Guidelines suggest that in determining whether an 

expense is unusual or extraordinary, “consideration should be given to whether the 

circumstances from which the need arose would normally result in an additional charge to a fee 

paying client over and above that charged for overhead expenses.” (Guide, § 320.70.30). 

Recommendations 10(b)(i) – (iv) address some of the particular management burdens 

associated with multi-defendant federal death penalty cases. Special efforts are required to 

ensure the orderly administration of justice in these matters, which tend to become costly and 

cumbersome for courts and counsel. Courts should also consider encouraging prosecutors to 

provide discovery in a way that will make information much more accessible and therefore less 

costly for the defense to assimilate. For example, the way in which the government organizes 

the material it turns over to defense counsel and the way it formats it can have significant cost 

consequences. Where there is extensive wiretap evidence, the government might be asked to 

provide defense counsel not just with recordings, but with any transcripts of those recordings. 

Such time and cost savings possibilities should be urged wherever possible. The court might 

initiate discussion about how best to contain discovery costs by soliciting a list of ideas from the 

parties. 

Recommendation 10(b)(i) suggests that courts make early decisions concerning 

severance of non-capital from capital codefendants. In general, capital cases remain pending 

longer than non-capital cases and involve far greater amounts of pre-trial litigation. Separating 

the cases of non-capital codefendants, where appropriate, may lead to swifter and less costly 

dispositions in those cases. The earlier such a decision is implemented, the greater will be the 

cost savings. 

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Recommendation 10(b)(ii) suggests that courts schedule frequent status hearings so that 

discovery and other matters may proceed efficiently and problems may be noted early and 

swiftly resolved. If the schedule for such status hearings (on a monthly or other basis) is agreed 

upon in advance, all parties can plan accordingly and valuable time will not be consumed with 

counsel and judges trying to find a mutually convenient time for their next meeting. 

Recommendation 10(b) (iii) suggests that, if all counsel agree, courts consider 

designating the attorneys for one defendant as “coordinating counsel.” Coordinating counsel 

might be responsible for arranging for the efficient filing and service of motions and responses 

among the codefendants, scheduling co-counsel meetings and court dates, facilitating discovery, 

or completing any other tasks deemed appropriate by counsel and the court. In multi-defendant 

cases where the federal defender organization represents a defendant eligible for the death 

penalty, courts should (taking into account the views of the federal defender) consider 

designating the FDO as coordinating counsel because of its institutional capabilities. In the 

event that a panel attorney is designated as coordinating counsel, the additional time and 

resources demanded by this role should be compensated. 

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11. Availability of Cost Data 

The Administrative Office should improve its ability to collect and analyze information about 

case budgets and the cost of capital cases. 

Commentary 

The cost data for this report were assembled by painstaking manual collection, 

necessitated by the limitations of the only available information source, the CJA payment 

system.107 Given the significance of capital case costs to the federal defender program, the 

Administrative Office has given priority to developing an electronic CJA voucher processing 

system that will provide accurate and reliable case data that are accessible for analysis. 

Enhancing the ability of the Defender Services program to analyze and make use of cost and 

other quantitative data relating to federal death penalty cases would assist in making resource 

allocation decisions and in establishing policy. In addition, the judiciary should give further 

consideration to geographic disparities in defense resources and the relationship between low 

cost defense representation and sentencing outcome in capital cases. The Administrative 

Office should work with the Department of Justice to obtain useful data about prosecution 

costs in federal capital cases. 

This report could not have been completed without extensive assistance from the 

federal capital trial, appellate, and post-conviction Resource Counsel Projects, including 

access to information from their databases. These data are vitally important to the Defender 

Services program and their collection and analysis should remain a priority and be supported 

by the Administrative Office. 

107 The CJA Panel Attorney Payment System is a judiciary-wide application in which all attorney and expert 

service provider vouchers for representation-related work performed are recorded, processed and paid. 

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