Virginia Law

Pursuant to § 19.2-163.8 E of the Code of Virginia, the Public Defender Commission, in conjunction with the Virginia State Bar, hereby sets forth the following standards for appointed counsel determined to be qualified and possessing proficiency and commitment to quality representation in capital cases.* While § 19.2-163.7 of the Code of Virginia, effective July 1, 1992, does not require more than one attorney, the appointment of two attorneys is strongly urged for trial, appellate and habeas proceedings. Thus, the standards often refer to "lead counsel"** and "co-counsel." If a public defender is appointed as either "lead" or "co-counsel," the other attorney should be appointed from the private bar.

A. Trial counsel

1. Court-appointed "lead counsel" shall:

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:

(1) Experience as "lead counsel" in the defense of at least one capital case;

(2) Experience as "co-counsel" in the defense of at least two capital cases;

(3) 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 as set forth in subdivisions 1 b and 1 d.

b. Have at least one of the following qualifications:

(1) Experience as "lead counsel" or "co-counsel" in a murder trial;

(2) Experience as "lead" or "co-counsel" in at least two criminal jury trials.

B. Appellate counsel. Attorneys qualifying as court appointed "lead counsel" under subsection 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 an 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 procedure of appellate practice.

C. Habeas corpus counsel.

1. Habeas corpus "lead counsel" shall satisfy one of the following requirements:

a. Be qualified as "lead counsel" pursuant to subsection 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 post conviction 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" shall satisfy one of the following requirements:

a. Service as "lead" or "co-counsel" in at least one capital habeas corpus proceeding in Virginia or federal courts, or both, during the last three years;

b. Have at least seven years of civil trial and appellate litigation experience in the Courts of Record of the Commonwealth or federal courts, or both.

*Whenever the term "capital case" is used, it shall mean a case tried to a jury wherein the sentencing phase was held pursuant to § 19.2-264.2.

**Whenever the term "lead counsel" is used, this would also include an attorney acting as sole counsel in a case.